United States v. Timm
| Decision Date | 24 December 2014 |
| Docket Number | No. 14-2108,14-2108 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MITCHELL TIMM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
Before DIANE P. WOOD, Chief Judge MICHAEL S. KANNE, Circuit Judge JOHN DANIEL TINDER, Circuit Judge
Appeal from the United States District Court for the Eastern District of Wisconsin.
ORDER
Mitchell Timm received a below-guidelines sentence for armed bank robbery and brandishing a firearm during that offense. Timm appeals, arguing that the district court did not consider his primary contention at sentencing that the criminal-history score was excessive because of his mental-health issues and age at the time he committed prior crimes. We conclude that Timm did not waive his complaint but that the court sufficiently considered his argument, and affirm the sentence.
In November 2012 Timm and his stepbrother robbed a bank in Wauwatosa, Wisconsin; both men were armed. They fled the bank in a stolen car, which they then set on fire. Timm was charged with armed bank robbery, see 18 U.S.C. § 2113(a),brandishing a firearm in furtherance of that crime, see id. § 924(c)(1)(A)(ii), and possessing a stolen vehicle, see id. § 2315. He pleaded guilty to the first two charges, and the government agreed to dismiss the third.
A probation officer calculated a guidelines sentencing range of 84 to 105 months for the armed robbery, based on an offense level of 22 and criminal-history category VI. Timm faced a statutory-minimum consecutive sentence of 84 months under § 924(c)(1)(A)(ii) because he brandished his gun during the robbery.
In his report the probation officer detailed Timm's "disturbing childhood" and mental-health history. The PSR revealed that when Timm was 3-years-old, his stepmother physically abused him. That was followed by commitment in psychiatric facilities from ages 5 to 12. Before he turned 7, Timm had been diagnosed with bipolar disorder, schizophrenia, and ADHD; at age 10 he was diagnosed with depressive and anxiety disorders, and at age 11 he tried to commit suicide by jumping from the hospital roof. From ages 12 to 15 Timm lived with foster families, but was removed from one home when the father physically abused him. He returned to his mother's house, but there too was abused; twice he was sent to juvenile detention for altercations with his stepfather after witnessing his stepfather abuse his mother. At age 15 Timm returned to live with his father, who had a history of crime and drug abuse. Over the next few years Timm incurred a string of convictions and arrests, mostly for misdemeanors like shooting paintballs at cars or breaking windows, and as a result he was incarcerated in Wisconsin from the ages of 17 to 21. Timm took medications for his psychiatric disorders but stopped in 2012, when he was 22, because he felt they were too expensive.
Timm submitted a sentencing memorandum urging the court to sentence him to one day for the armed robbery and seven years (the statutory minimum) for brandishing a firearm. He argued that his high criminal-history score was overstated because he committed most of the relevant offenses five years earlier when he was 17, and because he had suffered from "a lifetime" of mental-health problems. Because of his youth at the time he committed the prior crimes, he said, the criminal-history score did not reflect accurately his likelihood of recidivating. He stated that his mental-health history was "of equal significance," but did not assert that his mental-health problems caused him to commit the earlier offenses or the armed robbery.
At sentencing Timm's lawyer repeated these arguments. He stressed that Timm committed the "juvenile type activity" during a 6 to 12 month "crime spree" when he was young and impulsive. (His lawyer omits that Timm's crime spree necessarily—butperhaps not voluntarily--stopped at age 17 because he was incarcerated for the next four years.) Counsel argued briefly about Timm's mental health, categorizing him as a "troubled mental health patient" with "some pretty serious issues." Timm's father also addressed the court and explained that when Timm took medication, he was "fine" and asked the court to order Timm to participate in psychiatric treatment after his release.
The district court adopted the findings of the PSR and imposed a below-guidelines sentence. The judge explained that it had been a long time since he had seen a 23-year-old with such a high criminal-history score and even more arrests, which the judge described as a reflection of the unmitigated fact that Timm had "absolutely no respect" for the law. After considering the need to deter Timm from criminal behavior and to protect the public, the court suggested that Timm's "barebones conduct" actually warranted a sentence of "something like 15 years." The court concluded, however, that an "appropriate, fair, just and reasonable sentence . . . after considering all of the relevant conduct, [and] the relevant sentencing factors" was 84 months for brandishing a firearm and 30 months for the armed robbery—at least 54 months below the guidelines range. As a condition of supervised release, the court ordered Timm to participate in a mental health program, undergo psychiatric evaluations, and take all prescribed medications.
Timm appeals his sentence, arguing that the district court erred by not addressing his principal argument that his mental health and youth mitigated his prior criminal offenses. The government insists that Timm has waived his procedural objection because he did not ask the district judge for further explanation of the sentence, despite his opportunity to do so. It's true that a defendant waives a challenge to the district court's consideration of a mitigating argument if, when the court asks, he responds that he is satisfied that the court addressed his primary arguments. United States v. Garcia-Segura, 717 F.3d 566, 569 (7th Cir. 2013); United States v. Donelli, 747 F.3d 936, 940-41 (7th Cir. 2014). But Timm's response to the court's catchall question at the end of sentencing does not constitute a waiver. In Garcia-Segura we encouraged sentencing courts to ask defense counsel "after imposing [the] sentence but before advising the defendant of his right to appeal" if the lawyer was satisfied with the court's explanation of the sentence. Id. at 569 (emphasis added). But at Timm's sentencing the judge asked the lawyers only, "Are there any additional matters that we need address?" at the very end of the sentencing hearing after he had imposed the sentence and conditions of supervised release and explained Timm's appellate rights. We agree with Timm that a natural understanding of the judge's question could be thathe was inquiring about whether there were matters other than sentencing to address—"such as B.O.P placement or...
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