United States v. Jerry
| Decision Date | 22 December 2022 |
| Docket Number | 22-1302 |
| Citation | 55 F.4th 1124 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alfred E. JERRY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Katherine Virginia Boyle, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL 61802-0000, for Plaintiff-Appellee.
Lew A. Wasserman, Attorney, Law Offices of Lew A. Wasserman, S.C., Milwaukee, WI, for Defendant-Appellant.
Before Sykes, Chief Judge, and Hamilton and Brennan, Circuit Judges.
After robbing a cellphone store at gunpoint, Alfred Jerry pleaded guilty to three crimes, including Hobbs Act robbery. The district court sentenced Jerry as a career offender under the Sentencing Guidelines. Jerry appealed that designation, and we remanded for resentencing based on our holding in Bridges v. United States , 991 F.3d 793, 797 (7th Cir. 2021), that Hobbs Act robbery is not categorically a "crime of violence." United States v. Jerry , 996 F.3d 495, 496–97, 499 (7th Cir. 2021) ( Jerry I ). On remand, the district court resentenced Jerry to 171 months' imprisonment and a period of supervised release. Jerry appeals the new sentence, arguing that the district court committed procedural error and that the sentence is substantively unreasonable. We affirm.
On May 2, 2019, Alfred Jerry entered a cellphone store with a revolver. He encountered an employee and instructed him not to move. When a second employee entered the store, Jerry threatened to shoot both employees. He ordered one to lock the front door and turn off the "open" sign and directed the other to the safe room where the store kept its phones. Jerry handed the employee a bag and told him to fill it with phones, and he instructed the other employee to turn off the surveillance cameras. Once the bag had been filled, Jerry took one employee's personal phone and both employees' keys. He also took $12 from the wallet of one of the employees while holding that employee at gunpoint. Jerry next ordered both employees to lie on the floor of the safe room before shutting the door and locking it from the outside. He placed the gun in his jeans and removed his gloves, throwing them in a trash can that he took with him as he exited the store. The cellphone store later determined that Jerry had taken 45 phones and watches, valued at $31,599.86.
Jerry pleaded guilty to three crimes: obstruction of commerce by robbery (Hobbs Act robbery) in violation of 18 U.S.C. § 1951 (Count One), brandishing of a firearm in furtherance of a robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count Two), and possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count Three). At Jerry's first sentencing, the district court applied a career offender enhancement based on the classification of Hobbs Act robbery as a "crime of violence" under the Sentencing Guidelines. This designation carries with it an assignment to criminal history category VI and to offense levels at or near the statutory maximum.
Jerry's career offender designation meant he was subject to a Guidelines range of 292 to 365 months' imprisonment for all counts. The district court imposed an aggregate sentence of 264 months. We reversed, Jerry I , 996 F.3d at 496, in light of Bridges , 991 F.3d at 797.
On remand, the Probation Office prepared a resentencing memorandum which explained that the effective Guidelines range on all counts was 135 to 147 months' imprisonment. A range of 51 to 63 months applied to Counts One and Three, and Count Two carried a mandatory minimum of 84 months. At the resentencing hearing, the government argued that despite the "esoteric application of the categorical approach" that resulted in a lower Guidelines range, "the same facts" and "the same history" applied except for Jerry's completion of 213 hours of self-study. It therefore recommended 264 months' imprisonment, the same as the first sentence. The defense, on the other hand, pointed out that many courts have agreed with this court that Hobbs Act robbery is not a crime of violence. If the district court disagreed with the Guidelines' assumption that Hobbs Act robbery is committed non-violently, the defense emphasized that it was "the Sentencing Commission's responsibility" to amend the Guidelines. But the district court bears responsibility to correctly calculate the applicable Guidelines range. Per the defense, the district court was "starting at a very different place than the [c]ourt started during the last sentencing." The defense thus recommended a lower sentence of 107 months.
Before imposing sentence, the district court relayed the applicable Guidelines ranges for Jerry's offenses and remarked it had occasionally thought about Jerry's crimes since the original sentencing. The court had considered "what was in the mind of those two people in the store when [Jerry] went in there and what was going through their mind[s] as [Jerry] w[as] committing th[e] robbery." Jerry had directed the employees to the safe room, and the district court recognized that such a scenario often results in death. Although Jerry had not killed the employees, he had "left them permanently scarred." The district court noted the employees would carry the experience with them for "the rest of their li[ves]."
The district court also considered who Jerry was and what he had experienced prior to committing the crimes, noting his background and criminal history. The court commented it was "a very good thing" that, since Jerry had been in prison, he had not had any write-ups and engaged in self-study. The court acknowledged the government's argument that Jerry might have done the self-study because he knew he was going to be resentenced, but the court commended Jerry, noting that not all defendants did so.
Explaining that the sentence should reflect the seriousness of the offense, promote respect for law, provide just punishment, and provide adequate deterrence, the court described the robbery as a "very, very serious crime" and opined that Jerry was "headed down a totally self-destructive road." Although the court did not entirely disagree that the "sentence shouldn't be disproportionate to what others have received," it observed that Jerry should be sentenced under "all of the circumstances."
The district court also labeled the applicable Guidelines range of 51 to 63 months for Counts One and Three as "frankly, ridiculous" and stated, "But then, I'm only a district judge, and so what do I know?" To the court, Jerry's crime was only "one heartbeat away from murder," which "ha[d] to be reflected in the sentence." The court declined to adopt the government's recommendation to impose the same sentence, observing that the new sentence should "reflect in some way the new guideline range."
The district court resentenced Jerry to a total of 171 months' imprisonment, with 87 months on Counts One and Three to run consecutively to 84 months on Count Two. This new sentence was approximately 16 to 27 percent above the Guidelines range for all counts but reflected a reduction of 93 months from the prior aggregate sentence. Jerry appeals.
We review the resentencing here in two steps. United States v. Major , 33 F.4th 370, 378 (7th Cir. 2022). We first evaluate the sentence de novo for procedural error. Id. at 378–79. The district court is to begin by calculating the applicable Guidelines range and then must explain the chosen sentence. See United States v. Morgan , 987 F.3d 627, 632 (7th Cir. 2021). If the court varies from the Guidelines, it "must adequately explain the chosen sentence to allow for meaningful appellate review." Gall v. United States , 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Procedural errors include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." Major , 33 F.4th at 378 (quoting United States v. Faulkner , 885 F.3d 488, 498 (7th Cir. 2018) ) (internal quotation marks omitted).
If there is no procedural error, we next review the sentence for substantive reasonableness. Id. at 379. "[S]ubstantive reasonableness occupies a range, not a point, and ... the sentencing judge is in the best position to apply the § 3553(a) factors to the individual defendant." Morgan , 987 F.3d at 632 (quoting United States v. Warner , 792 F.3d 847, 856 (7th Cir. 2015) ) (internal quotation marks omitted). We therefore review the sentence deferentially, remanding for resentencing only if we find an abuse of discretion. See id. For sentences above the Guidelines range, we "must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance." Id. (quoting Gall , 552 U.S. at 50, 128 S.Ct. 586 ).
Jerry argues the district court procedurally erred at the resentencing in three ways. First, he contends the court permitted the government to argue that Bridges and Jerry I were wrongly decided and that the same sentence should be imposed. Second, he asserts the court's comment that in its "personal belief," the range was "frankly, ridiculous," reflected a "mind-set of un-seriousness" and was "not at all the kind of comment[ ] that should inform an appropriate sentence." Third, he submits the district court failed to adequately explain the reason it varied upward.
The Government's Arguments at Resentencing. According to Jerry, the district court bypassed the Guidelines and allowed the government to argue that the same, 264-month sentence should be imposed. The government disputes Jerry's assertion; it says the district court identified the correct Guidelines range and correctly decided that an upward variance was...
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...sentencing." Gall, 552 U.S. at 50, 128 S.Ct. 586. We address de novo any alleged procedural errors at sentencing. United States v. Jerry, 55 F.4th 1124, 1130 (7th Cir. 2022).A Saldana-Gonzalez first argues that the court procedurally erred by relying on its personal fears and laying blame f......