United States v. Ferguson

• Citation: 831 F.3d 850
• Decision Date: 03 August 2016
• Docket Number: No. 15-3753,15-3753
• Parties: United States of America, Plaintiff–Appellee, v. Grover Coleman Ferguson, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

831 F.3d 850

United States of America, Plaintiff–Appellee,

v.Grover Coleman Ferguson, Defendant–Appellant.

No. 15-3753

United States Court of Appeals, Seventh Circuit.

Argued May 26, 2016

Decided August 3, 2016

Benjamin W. Proctor, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Joseph Aragorn Bugni, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI, Daniel W. Stiller, Federal Public Defender, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, for Defendant–Appellant.

Before Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Defendant Grover Ferguson appeals his sentence. He was seventeen years old when he shot a woman three times during a carjacking, permanently disabling her. The high end of the guideline range for his crime was 217 months in prison. The government recommended a 240-month above-guideline sentence based on the severity of Ferguson's violent actions. The district court, however, imposed a sentence of 600 months (50 years) in prison, or more than 31 years longer than the top of the guideline range.

We vacate the sentence and remand for re-sentencing. The Sentencing Guidelines are, of course, advisory. A judge is free to exercise his or her judgment to depart from them. Such a dramatic variance from a guideline range, however, requires a substantial explanation. Gall v. United States , 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The explanation given here does not support a sentence that is more than 31 years and more than two and a half times longer than the top of the guideline range.

I. Ferguson's Crime and Sentence

On April 21, 2015, Ferguson was seventeen years old. He was drunk and high. He wanted a car. He approached a woman on the street as she was getting into her car. He opened the passenger door, pointed a gun at the woman, and demanded her keys. She hesitated, thinking Ferguson was joking.

Ferguson demanded the keys again, and he then shot the woman three times at point-blank range, including one shot to her face. Ferguson walked over to the woman, got her keys, and started the car. The woman somehow managed to drag herself to the curb to avoid being run over as Ferguson drove off. Police arrested Ferguson the next day driving the stolen car, but only after a high-speed chase.

Ferguson's crimes had a devastating effect on the woman he shot. She lost sight in one eye and has nerve damage to her ear and face. She suffers pain daily. She cannot drive anymore and depends on others for transportation. She has not been able to work since the attack. Ferguson's attack left her with psychological injuries. She has nightmares about the robbery, has become scared of her surroundings, and panics when she sees young men outside her home.

Ferguson pled guilty to vehicular robbery by force, 18 U.S.C. § 2119(2), and discharge of a firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). The statutory range for the carjacking is up to 25 years (300 months) in prison. The statutory range for discharging the firearm is a mandatory minimum ten years (120 months) up to life, which must be consecutive to the sentence for the carjacking.

There is no dispute about the Sentencing Guideline calculation here. The guideline range for the carjacking was 78 to 97 months, and the guideline sentence for the firearm count was 120 months, consecutive to the carjacking sentence. The total guideline range was thus 198 to 217 months (sixteen and a half years to a little over eighteen years).

At the sentencing hearing, the government requested an above-guideline 20-year sentence due to the senselessly violent nature of Ferguson's crime. The victim exercised her right to be heard under the Crime Victims' Rights Act, 18 U.S.C. § 3771, and urged the court to impose the maximum possible sentence. The defense proposed a fifteen-year sentence. The district court sentenced Ferguson to 50 years: eight years for the carjacking and 42 years for firing the gun.

II. The Delayed Supervised Release Conditions

Before addressing Ferguson's arguments, we first address some procedural confusion in the case. The district court sentenced Ferguson orally on December 3, 2015 and entered its written judgment of conviction on December 9, 2015. The sentence at that time was not complete, though, because the judge had not yet announced the conditions of supervised release that he intended to impose, nor had he decided the amount of restitution. On December 11, 2015, Ferguson filed his notice of appeal. More than three months later, on March 22, 2016, the district court issued an amended judgment of conviction that included conditions of supervised release and ordered restitution of just over $23,000. Ferguson did not file a new notice of appeal.

The district court erred by failing to impose conditions of supervised release at the time of the sentencing hearing and in the original written judgment of conviction. “Conditions of supervised release are part of a defendant's sentence.” United States v. Neal , 810 F.3d 512, 516 (7th Cir. 2016). If the district court imposes a term of supervised release, the court must impose certain conditions. Courts usually impose additional standard recommended conditions and sometimes impose additional special conditions. See 18 U.S.C. § 3583(d) ; U.S.S.G. § 5D1.3. The court should announce those conditions and provide any needed explanations at the sentencing hearing, subject to a defendant's possible waiver of the full recitation or explanation if there is no controversy about them. See United States v. Orlando , 823 F.3d 1126, 1131–34 (7th Cir.2016) (error to delay imposing mandatory term and conditions of supervised release; suggesting caution about delaying imposition of discretionary and special conditions); United States v. Lewis , 823 F.3d 1075, 1082–83 (7th Cir.2016) (elucidating waiver); United States v. Thompson , 777 F.3d 368, 376 (7th Cir. 2015) (error to omit from judge's oral sentencing statement a condition of supervised release that was included in the written judgment).

A district court may, of course, modify the conditions of supervised release after sentencing. 18 U.S.C. § 3583(e)(2). At the time the district court acted here, we had held that a district court could modify conditions after a defendant had filed a notice of appeal. See United States v. Ramer , 787 F.3d 837, 838–39 (7th Cir. 2015). Recently, however, we overruled that aspect of Ramer and now require parties and district courts to use the process under Seventh Circuit Rule 57 to modify terms of supervised release while an appeal is pending. United States v. Ray , 831 F.3d 431, 438–39 (7th Cir. 2016). We remand for a full re-sentencing on other grounds, though, so we need not base our decision on this procedural bobble.¹

III. Explaining the Above-Guideline Sentence

The Sentencing Guidelines have been advisory since United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but the Supreme Court's decisions since Booker make clear that the advice from the Guidelines is important and that non-guideline sentences call for explanations sufficient to support meaningful appellate review. The Guidelines were intended to reduce unjustified sentencing disparities, so that similar crimes by similar defendants would result in similar sentences. See Peugh v. United States , 569 U.S. ––––, ––––, 133 S.Ct. 2072, 2079, 186 L.Ed.2d 84 (2013) ; Booker , 543 U.S. at 250, 125 S.Ct. 738. Even after Booker, the district judge must begin the sentencing process by calculating the applicable guideline range even if she does not intend to stay within that range. Gall v. United States , 552 U.S. 38, 49–50 & n.6, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; see also Peugh , 569 U.S. at ––––, 133 S.Ct. at 2083 (“The post-Booker federal sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines and that they remain a meaningful benchmark through the process of appellate review.”).

Under the post-Booker sentencing scheme, a sentencing judge remains free to disagree with the broad philosophies underlying the Guidelines or with specific provisions. Gall , 552 U.S. at 49–50, 128 S.Ct. 586 ; Kimbrough v. United States , 552 U.S. 85, 101–02, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). And even when the Guidelines were mandatory, a judge's power to sentence outside the guideline range was an essential part of the guideline system. The Sentencing Commission and advocates of the Guidelines have never claimed that guideline sentences were appropriate in every case. Booker , 543 U.S. at 234, 125 S.Ct. 738 (“The Guidelines permit departures from the prescribed sentencing range in cases in which the judge ‘finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ”), quoting 18 U.S.C. § 3553(b) (2000) ; see also U.S.S.G. § 1B1.4, cmt., background (2004). But two cornerstones of the Sentencing Reform Act that have survived Booker are that appellate review of sentences must be meaningful and that sentencing judges must provide enough of an explanation to allow meaningful appellate review. Peugh , 569 U.S. at ––––, 133 S.Ct. at 2083–84 ; Gall , 552 U.S. at 50–51, 128 S.Ct. 586.

Among the Supreme Court's post-Booker cases, most relevant for this case is Gall, which teaches that a sentencing judge “must give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications.” 552 U.S. at 46, 128 S.Ct. 586. If a judge “decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure...