United States v. Lockwood

• Decision Date: 01 November 2016
• Docket Number: No. 15-3856,15-3856
• Citation: 840 F.3d 896
• Parties: United States of America, Plaintiff–Appellee, v. Lloyd B. Lockwood, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

840 F.3d 896

United States of America, Plaintiff–Appellee,

v.Lloyd B. Lockwood, Defendant–Appellant.

No. 15-3856

United States Court of Appeals, Seventh Circuit.

Argued September 22, 2016

Decided November 1, 2016

Jason M. Bohm, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, Greggory R. Walters, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff–Appellee.

Erin Lange Ramamurthy, John Lausch, Attorneys, Kirkland & Ellis LLP, Chicago, IL, for Defendant–Appellant.

Before Bauer, Posner, and Manion, Circuit Judges.

Manion

, Circuit Judge.

This case returns for a second time. Lloyd Lockwood appeals his 120–month sentence for possession of a destructive device. Previously, we vacated Lockwood's first sentence of the same length. This time, for the reasons set forth below, we affirm.

I. Background

A. Conviction and First Sentencing¹

In an attempt to gain an advantage in a family dispute, Susie Curtis asked her longtime friend Lloyd Lockwood to place a package in her brother's truck and then report to the police that it contained a bomb. Lockwood agreed to do it, but upon arrival at the brother's house, he failed to locate the truck. As a result, Lockwood decided to place the bomb in the brother's mailbox. He then immediately called the police and reported that the brother had a bomb and planned to blow up his office. An initial bomb-squad search turned up nothing, but Curtis's sister-in-law discovered the package in the couple's mailbox later that day. Authorities determined that the package contained a pipe bomb that was incapable of detonation because it was not connected to a power source.

After reviewing Curtis's phone records, federal agents zeroed in on Lockwood. The government eventually charged him with possession of a destructive device. Before trial, Lockwood stipulated that the pipe bomb qualified as a destructive device under federal law. As a result, he necessarily staked his entire defense at trial on his supposed ignorance that the package contained a bomb. The jury was unconvinced and convicted him.²

The district court sentenced Lockwood to the statutory maximum 120 months' imprisonment, well above the Guidelines range of 33–41 months. The court concluded that Lockwood had to be incapacitated, but it based that finding on only a short, non-detailed description of Lockwood's criminal history and a cursory discussion of the crime of conviction. See Lockwood I , 789 F.3d at 778–79

.

On appeal, we affirmed his conviction but vacated his sentence. We held that the district court did not explain adequately “why Lockwood is different from the vast majority of defendants” who receive within–Guidelines sentences. Id. at 782

. In short, the district court's description of Lockwood's crime and brief notation of his “extensive criminal record” was insufficient to show why Lockwood should receive a sentence nearly three times the top of the Guidelines range. Id.

B. Resentencing

On remand, the district court again imposed a 120–month sentence. This time, however, it detailed its justification in a lengthy sentencing order. The court recounted testimony from Lockwood's ex-wife and her sister, both of whom spoke about Lockwood's propensity for violence that continued even while he was on pretrial release in this case. Although Lockwood's criminal history category was I, the court found that “his Guideline criminal history and criminal history category do not reflect the full magnitude of his criminal conduct.” It extensively detailed his troubling history, which includes several domestic incidents wherein he threatened to kill women, one of which resulted in a conviction for aggravated arson when he burned down a girlfriend's apartment building. See People v. Lockwood , 240 Ill.App.3d 137, 181 Ill.Dec. 59, 608 N.E.2d 132 (1992)

.

Ultimately, the district court concluded that Lockwood should be incapacitated for a significant time to protect the public and those closest to him. Based on the evidence and Lockwood's demeanor, the court deemed Lockwood a “sociopath” who showed little remorse for his actions and had made a lifetime of excuses for criminal behavior. Since the court held “very little hope for Lockwood's rehabilitation or behavior modification,” it sentenced him to the ten-year maximum. Again, Lockwood timely appealed.

II. Discussion

A. Procedural Soundness

We review Lockwood's procedural challenge de novo . Lockwood I , 789 F.3d at 781

. “A sentencing court commits procedural error by not adequately explaining its choice of sentence.” Id. (quoting United States v. Lyons , 733 F.3d 777, 784 (7th Cir. 2013) ). To ensure that the sentencing judge did not commit any “significant procedural error,” Gall v. United States , 552 U.S. 38, 53, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), we examine whether the district court: i) properly calculated the Guidelines range; ii) recognized that the Guidelines range was not mandatory; iii) considered the sentencing factors in 18 U.S.C. § 3553(a) ; iv) selected a sentence based on facts that were not clearly erroneous; and v) adequately explained the chosen sentence including an explanation for any deviation from the Guidelines range. Lockwood I , 789 F.3d at 781.

If the sentencing court decides that an above–Guidelines sentence is warranted, it must “consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.” Gall , 552 U.S. at 50, 128 S.Ct. 586

. The court must “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. The sentencing judge also must address a defendant's “principal arguments in mitigation unless they are too weak to merit discussion.” United States v. Garcia–Segura , 717 F.3d 566, 568 (7th Cir. 2013). The ultimate question is not whether the sentence imposed could be a reasonable one, but whether the reasons given are sufficiently compelling to support the upward departure. Lockwood I , 789 F.3d at 781.

In this case, the district court properly calculated the Guidelines range, acknowledged that the range was mandatory, and considered the Section 3553(a)

factors. Thus, only the final two, somewhat related procedural requirements are at issue. Lockwood contends that the district court relied on erroneous facts and failed to explain adequately the upward departure. According to Lockwood, the court made four specific errors: (1) it improperly credited the testimony of his ex-wife and former sister-in-law to establish his propensity for violence; (2) it improperly inferred that the pipe bomb he deposited was capable of harm; (3) it relied too heavily on his criminal history despite the age of his convictions; and (4) it failed to sufficiently address his mitigation arguments. Lockwood's first two arguments allege that the district court relied on clearly erroneous facts, while the third alleges a failure to explain the chosen sentence adequately. We consider and reject these arguments in turn.

1. Sisters' Testimony

Lockwood contends that the district court should have disregarded some of Crystal Jarvis's testimony. He says that Jarvis, his former sister-in-law, was clearly biased and that part of her testimony was fatally inconsistent. Lockwood particularly takes issue with Jarvis's claim at the hearing that Lockwood had a gun when he threatened her while on release in this case. That testimony contradicts what she told police when she first reported the incident in 2012. The district court credited her in-court testimony and found that Lockwood pointed a gun at her and threatened to kill her.

“[D]eterminations of witness credibility are entitled to great deference and ‘can virtually never be clear error.’ ” United States v. Ortiz , 431 F.3d 1035, 1039 (7th Cir. 2005)

(quoting United States v. Blalock , 321 F.3d 686, 690 (7th Cir. 2003) ). Unless a witness's testimony describes events that are impossible, either physically or under the laws of nature, the district court is within its discretion to credit that testimony. Id. Inconsistencies in a witness's testimony are not enough to meet this standard. See

id. at 1040. Nor is potential bias. Indeed, a district court “may credit testimony that is ‘totally uncorroborated and comes from an admitted liar, convicted felon, or large scale drug-dealing, paid government informant.’ ” United States v. White , 360 F.3d 718, 720 (7th Cir. 2004) (quoting Blalock , 321 F.3d at 690 ). The court's decision to credit Jarvis's testimony was not clear error.

Next, Lockwood takes issue with the district court's recitation of certain testimony from his ex-wife, Tonya Sexton. Specifically, the court recounted that “Sexton spoke of evidence of fires (a charred paper towel stuffed into her car's fuel tank filler neck, and a fire smouldering upstairs in their house after Lockwood left the house one morning).” It cautioned that Sexton “could not be sure Lockwood had anything to do with either occurrence,” but noted that “Lockwood is no stranger to fire as a means of intimidation.”

Lockwood claims that the district court improperly inferred that he was involved in those incidents. The text of the sentencing order says otherwise. The court credited Sexton's testimony that the incidents occurred, but also her uncertainty about Lockwood's involvement. It also alluded to Lockwood's past arson conviction. That is not equivalent to a factual finding that Lockwood was involved in the incidents with Sexton. The court did not rely on any clearly erroneous facts with respect to her testimony.

2. The Bomb's Ability to Cause Harm

Lockwood next contends that the district court improperly inferred that the bomb he possessed was capable of harm. The sentencing order does say that Lockwood's placement of the bomb in the mailbox “expos[ed] the mail carrier to harm.” But this is little more than a stray remark. The footnote attached to it dispels any concern that the court relied on...