United States v. Anthony Morgan ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2737
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY MORGAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18 CR 158 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 30, 2020 — DECIDED FEBRUARY 3, 2021
____________________
Before SYKES, Chief Judge, and WOOD and BRENNAN, Circuit
Judges.
WOOD, Circuit Judge. Anthony Morgan pleaded guilty to
conspiring to receive seven firearms from out of state without
the necessary licenses, in violation of 18 U.S.C. § 371. The dis-
trict court imposed a 48-month sentence and various condi-
tions of supervised release. Morgan raises several challenges
to his sentence, but we find merit in only one. He contends
2 No. 19-2737
that the district court failed to justify supervised-release con-
dition 23 with reference to the sentencing criteria in 18 U.S.C.
§ 3553, and that it did not explain why this condition had to
be added to the rest of the discretionary conditions. We agree
with him and thus order a remand limited to this point.
I
Over a period of two years, Morgan transferred funds (us-
ing the services of a Walmart in Illinois) to an acquaintance
living in New Mexico. The recipient, who remains unnamed,
used those funds to buy guns in New Mexico and mail them
to Morgan’s residence in Chicago. Seven firearms made their
way northeast in that manner. It is unclear who was on the
receiving end of the shipments. While Morgan admits that the
firearms were sent to his home, and that several of his house-
mates (as he puts it, “friends [and] brothers”) had direct ac-
cess to the residence and thus the parcels, Morgan could not
recall in whose hands the guns came to rest. Law-enforcement
officers eventually recovered six of the guns. Several were
linked to gang-related homicides, including one of a child.
In 2018, the United States charged Morgan with violating
18 U.S.C. § 371 (conspiracy) and 18 U.S.C. § 922(a)(3) (unli-
censed receipt of a firearm). He pleaded guilty to the conspir-
acy charge, which specified that he had unlawfully received
firearms purchased outside the State of Illinois while not be-
ing a licensed importer, manufacturer, dealer, or collector.
The plea agreement provided that the substantive receipt
charge would be dropped.
In anticipation of Morgan’s sentencing, the U.S. Probation
Office prepared a Presentence Investigation Report (“PSR”).
The PSR assigned Morgan an offense level of 17, a criminal
No. 19-2737 3
history category of I, and an anticipated sentencing guide-
lines range between 24 to 30 months’ incarceration. The of-
fense level of 17 factored in Morgan’s acceptance of responsi-
bility, which brought his offense level from 20 down to 17.
Morgan’s counsel did not object to these calculations.
At the start of the sentencing hearing on August 27, 2019,
the district court accepted the PSR and its findings. Stressing
the gun violence that had followed in the wake of Morgan’s
scheme, the government pushed for the statutory maximum
of 60 months. Morgan asked for a sentence of 24 months, the
low end of his guidelines range.
Before the judge imposed the sentence, the following ex-
change took place:
Morgan: First, I just want to apologize to the Court and my
mother and family. And I’m just sorry for what I have
done. And I take full responsibility for my actions. And I
know—I know now that—I knew that it wasn’t right, and
again, I’m just sorry.
Court: When you say you knew it wasn’t right, what do
you mean?
Morgan: That I knew that I wasn’t a licensed gun collector
or anything, and that me receiving guns and making them
accessible or knowing they was accessible was wrong.
Court: Accessible to whom?
Morgan: Anybody that was in and out of that house.
Court: Well, who was in and out of the house?
Morgan: Friends, brothers. That’s it.
Court: Have you completed the sentence?
4 No. 19-2737
Morgan: Yes.
Court: Friends and brothers?
Morgan: And myself. I was in and out of the house.
…
Court: All right. The defendant has been given credit for
responsibility—acceptance of responsibility. But this state-
ment ignores totally the government’s argument and position
that when the defendant distributed the guns that he knew
that they would be used for unlawful purposes by gang mem-
bers, not just friends and family. And so this is a total failure
to accept the reality of the situation….
The court then stated that Morgan’s omission of any de-
scription of the gang involvement with the guns he had pro-
cured amounted to a total failure to come to grips with the
collateral consequences of his actions. This, the court said, “is
a factor” that it would take “into account in pronouncing the
sentence.” Before the court pronounced sentence, however,
Morgan’s counsel asked that Morgan have a chance to follow
up on his allocution. The court agreed to hear him. Morgan
then stated: “When I said family and friends, [I meant] the
gang bangers that was mentioned in the government report. I
didn’t want to avoid what I was—my actions or what I was
admitting to. I’m sorry for that.” Morgan did not specify the
names of the recipients or what he expected the recipients to
do with the guns, beyond anticipating that they would be
used for “illegal things.”
Ultimately the court sentenced Morgan to 48 months’ in-
carceration, commenting that this “case cries out for a sen-
tence that is fair but heavy enough” for general deterrence. In
rejecting the government’s request for an above-guideline
No. 19-2737 5
sentence of 60 months, the court explained that “there are in-
deed many 3553 factors that the Court has to consider, and I
have indeed done so, including various letters submitted by
the defense counsel.”
The court also imposed several discretionary conditions of
release. One of these conditions, condition 16, authorized the
probation office to visit Morgan at home, work, school, or
other locations and confiscate any contraband in plain view.
Another condition, condition 23, authorized the probation of-
fice to search Morgan’s “person, property, house, residence,
vehicle, papers, [computers], or office,” if the search was sup-
ported by reasonable suspicion.
Morgan raises three issues on appeal: (1) that the 48-
month prison sentence was substantively unreasonable and
procedurally defective: (2) that the district court committed
clear error by refusing to credit his acceptance of responsibil-
ity; and (3) that the court abused its discretion by imposing
discretionary condition 23. We address them in that order.
II
A
1
Federal criminal sentences must be both procedurally
sound and substantively reasonable. We evaluate procedural
challenges to sentences de novo. United States v. Pennington,
908 F.3d 234, 238 (7th Cir. 2018). The process for sentencing
must begin with “correctly calculating the applicable Guide-
line range.” Gall v. United States, 552 U.S. 38, 49 (2007); Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1904 (2018). Sentencing
courts must also explain themselves, and a deficient explana-
tion may give rise to procedural error. United States v. Lyons,
6 No. 19-2737
733 F.3d 777, 784–86 (7th Cir. 2013). A judge’s explanation of
her sentencing decision is particularly important in cases
where the final sentence significantly exceeds the guideline
range. United States v. Lockwood, 789 F.3d 773 (7th Cir. 2015).
When evaluating the procedural soundness of a sentence,
we do not explore its reasonableness; that inquiry is reserved
for a substantive challenge. United States v. Castro–Juarez, 425
F.3d 430, 433 (7th Cir. 2005). For procedural purposes,
“[w]hile more detail is always better than less in sentencing
findings,” the burden on the sentencing judge is not particu-
larly onerous. United States v. Burke, 148 F.3d 832, 836 (7th Cir.
1998). Accordingly, we have permitted courts to discharge
their obligations by expressly adopting the factual findings
and the guideline recommendations in the PSR. United States
v. Taylor, 135 F.3d 478, 483 (7th Cir. 1998); see also United States
v. Pippen, 115 F.3d 422, 424 (7th Cir. 1997); United States v.
McKinney, 98 F.3d 974, 981–82 (7th Cir. 1996).
Substantive reasonableness is a different matter. We re-
view the district judge’s choice of a sentence deferentially, un-
der the abuse-of-discretion standard. United States v. Wallace,
531 F.3d 504, 507 (7th Cir. 2008). When evaluating the sen-
tence, we recognize “that substantive reasonableness occu-
pies a range, not a point, and that the sentencing judge is in
the best position to apply the § 3553(a) factors to the individ-
ual defendant.” United States v. Warner, 792 F.3d 847, 856 (7th
Cir. 2015) (internal quotations omitted). On appeal, we pre-
sume that “a within-guidelines sentence is reasonable.” Id. at
856 (citing Rita v. United States, 551 U.S. 338, 341 (2007)).
That does not mean, however, that a sentence that falls
above the guideline range is unreasonable, either presump-
tively or absolutely. United States v. Henshaw, 880 F.3d 393, 396
No. 19-2737 7
(7th Cir. 2018). For such sentences, we “must consider the ex-
tent of the deviation and ensure that the justification is suffi-
ciently compelling to support the degree of variance.” Gall,
552 U.S. at 50. Greater deviations require more thorough jus-
tifications. Id. Nonetheless, we do not need to find “extraordi-
nary circumstances to justify a sentence outside the Guide-
lines range,” and the Supreme Court has rejected “the use of
a rigid mathematical formula that uses the percentage of a de-
parture as the standard for determining the strength of the
justifications required for a specific sentence.” Id. at 47. “As
long as the sentencing judge gives adequate justification,” the
judge “may impose a sentence above the guidelines range if
he believes the range is too lenient.” United States v. Hayden,
775 F.3d 847, 849 (7th Cir. 2014).
2
In light of these principles, we conclude that Morgan’s
48-month prison sentence was neither procedurally unsound
nor substantively unreasonable. At the start of the sentencing
proceedings, the court expressly adopted the PSR and its find-
ings for purposes of sentencing. As we mentioned, it assigned
a guideline range of 24 to 30 months to Morgan. The court
alluded to this fact when it imposed the sentence:
It is the judgment of the Court that you serve 48
months in the Bureau of Prisons. The recommendation
of the probation officer is a good one, 30 months. The
government is recommending the maximum sentence
in this case. Defense counsel has said within the guide-
line range would be appropriate but at the lower end
of 24.
8 No. 19-2737
The court also discussed the section 3553 factors thoroughly.
It emphasized sections 3553(a)(2)(1) and (2), which call on the
court to consider “the nature and circumstances of the offense
and the history and characteristics of the defendant,” and “the
need for the sentence imposed … to reflect the seriousness of
the offense … and to afford adequate deterrence to criminal
conduct.” It highlighted the context of Morgan’s crimes, not-
ing that Morgan knowingly affiliated himself with gang mem-
bers and introduced seven guns into their hands while know-
ing that the gang was involved in conflicts with rivals. The
court further explained that it wanted to promote general de-
terrence through its 48-month sentence. We see no procedural
error in its approach.
Nothing in this record would support a finding that the
48-month sentence was substantively unreasonable, either.
The court reasoned that “anyone in the public should be
aware … [i]f you distribute as many as seven guns, knowing
that they will be picked up and used by gang members for
unlawful consequences … you are going to the Bureau of Pris-
ons for a fair but appropriate sentence.” If Morgan’s sentence
was too light, the court added, it would “deprecate[] the seri-
ousness of what has happened.” We are satisfied that the
court did not abuse its discretion in reaching its decision.
B
Morgan next argues that the district court committed clear
error by failing to credit his acceptance of responsibility.
United States v. Schuler, 34 F.3d 457, 460 (7th Cir. 1994) (artic-
ulating the clear “error” standard of review on this issue). But
this argument proceeds from an inaccurate premise. In fact,
the court did give Morgan credit (to the tune of three offense
levels) for acceptance of responsibility. It reflected that
No. 19-2737 9
decision both through its adoption of the guidelines calcula-
tions in the PSR and in its remarks at sentencing. When it
nonetheless expressed concern that Morgan’s allocution ap-
peared to be inconsistent with acceptance of responsibility, it
was doing no more than considering whether the section 3553
factors called for a sentence that deviated from the guidelines
range, as was its right.
Criminal sentencing has not been rigidly governed by the
Sentencing Guidelines for more than 15 years, when the Su-
preme Court handed down United States v. Booker, 543 U.S.
220 (2005). Instead, guided by 18 U.S.C. § 3553 and relevant
statutory maxima and minima, the judge is free to select a sen-
tence within, below, or above the guidelines. That is all that
this sentencing judge did.
C
Last, Morgan argues that the court abused its discretion by
imposing discretionary supervised release condition 23. Here,
he has a point, and he preserved it by objecting at the correct
time in the district court. Although a sentencing judge has
“wide discretion in determining the conditions of supervised
release,” United States v. Adkins, 743 F.3d 176, 193 (7th Cir.
2014), this discretion is not without limits. “All discretionary
conditions … require findings,” United States v. Kappes, 782
F.3d 828, 846 (emphasis in original), and a judge considering
a condition of supervised release must “make an independent
judgment … of the appropriateness of the recommended con-
ditions” by referring to the defendant’s conduct and character
rather than on the basis of generalizations about the defend-
ant’s crime and criminal history. United States v. Siegel, 753
F.3d 705, 716–17 (7th Cir. 2014) (emphasis in original). A con-
dition of release must be (1) “reasonably related to the factors
10 No. 19-2737
identified in § 3553(a),” (2) “involve no greater deprivation of
liberty than is reasonably necessary for the purposes set forth
in § 3553(a),” and (3) be “consistent with the policy statements
issued by the Sentencing Commission.” United States v. Evans,
727 F.3d 730, 733 (7th Cir. 2013).
Reversal is not warranted every time a judge fails ade-
quately to justify a discretionary condition of supervised re-
lease; any such error must make a difference—that is, it must
not be harmless. Siegel, 753 F.3d at 713. In cases where multi-
ple conditions of supervised release are imposed, we have
held that a condition that duplicates the liberty constraints of
another may be removed without remanding the case, be-
cause the error is harmless. See United States v. Chatman, 805
F.3d 840, 847 (7th Cir. 2015). On the other hand, some type of
remand is necessary in other circumstances. So, for example,
when we find non-harmless “error in the supervised release
portion of the sentence, but no error in the custodial portion,”
we have remanded “for resentencing of the supervised re-
lease issue only.” Kappes, 782 F.3d at 866. In other circum-
stances, we have remanded “for an entire resentencing be-
cause reconsideration of those [vacated] conditions may con-
ceivably induce [the judge] to alter the prison sentence that he
imposed.” Id. (cleaned up).
The judge in Morgan’s case imposed two conditions of su-
pervised release (both discretionary) that are relevant to this
appeal. We reproduce them in full:
(16) [x] you shall permit a probation officer to visit you
[x] at any reasonable time or [x] as specified:
[x] at home [x] at work [x] at school [x] at a
community service location [x] other reasonable lo-
cation specified by a probation officer [x] you
No. 19-2737 11
shall permit confiscation of any contraband observed
in plain view of the probation officer.
…
(23) You shall submit your person, property, house,
residence, vehicle, papers, [computers (as defined in 18
U.S.C. 1030(e)(1)), other electronic communications or
data storage devices or media,] or office, to a search
conducted by a United States Probation Officer(s). Fail-
ure to submit to a search may be grounds for revoca-
tion of release. You shall warn any other occupants that
the premises may be subject to searches pursuant to
this condition. An officer(s) may conduct a search pur-
suant to this condition only when reasonable suspicion
exists that you have violated a condition of your super-
vision and that the areas to be searched contain evi-
dence of this violation. Any search must be conducted
at a reasonable time and in a reasonable manner.
Judges generally impose condition 23 on sex offenders
who are required to register under the Sex Offender Registra-
tion and Notification Act. See U.S.S.G. § 5D1.3(d)(7)(C). That
does not describe Morgan. The judge reasoned, however, that
“having a probation officer from time to time, where appro-
priate, and using reasonable discretion, decides [sic] to make
a visit to where the defendant resides or to inspect a house or
residence or vehicle for guns … would be appropriate in this
case … [g]iven the nature of the offense … especially where
… some of those weapons have been used for these unfortu-
nate collateral consequences.”
At a high level of generality, the judge may have been
making a valid point, but nothing in that remark explains why
12 No. 19-2737
both condition 16 and condition 23 were necessary. Under con-
dition 16, a probation officer already is permitted to visit Mor-
gan’s home or other reasonable location and conduct a super-
ficial inspection, even without reasonable suspicion. Alt-
hough Morgan did obtain “weapons” that were used in “un-
fortunate collateral consequences,” there is no indication that
Morgan used computers or that a search warrant was ever ex-
ecuted on his home. Instead, the judge’s reason for imposing
condition 23 seems to be just the fact that Morgan committed
the crime—something, in other words, that would apply to
every defendant. That will not do. Moreover, even on the as-
sumption that there are some cases in which both condition
16 and condition 23 are warranted, the judge offered no rea-
son to think that this is one of those cases.
In our view, the appropriate remedy for that omission is
to vacate condition 23 and remand exclusively on that point
to the district court, so that it can reconsider whether both
condition 16 and 23 are necessary and to explain why (or why
not). It is not apparent why a condition that is historically tied
to computer-mediated offenses is appropriate for someone
who illegally procured guns for a street gang. Yet condition
23 does appear to cover more ground than condition 16 and
thus it imposes a greater restriction on the defendant’s liberty.
We are not persuaded that the imposition of condition 23 was
harmless error.
III
We AFFIRM the sentence in all respects with the exception
of discretionary condition of supervised release 23, which we
VACATE and REMAND for reconsideration consistent with this
opinion.