Date: 01-17-2018

Case Style:

Case Number: 16-2928

Judge: Sykes

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Eastern District of Wisconsin (Milwaukee County)

Plaintiff's Attorney: Zachary John Corey

Defendant's Attorney: Mark D Richards

Description: Deshon Adams pleaded guilty to unlawfully
possessing a firearm as a felon and was sentenced
to 87 months in prison—the top of the range recommended
by the Sentencing Guidelines. Adams asks us to remand his
case for resentencing, arguing that the judge impermissibly
considered unreliable evidence linking him to seven unsolved
shootings when weighing the sentencing factors
under 18 U.S.C. § 3553(a).
2 No. 16-2928
We reject this argument and affirm. The challenged evidence
consists mainly of summaries of police reports describing
some of the physical evidence from the shootings
and memorializing statements from witnesses, confidential
informants, and jailhouse snitches connecting Adams to the
crimes. It also includes several statements by Adams himself,
who had bragged to police about his involvement in gang
violence, though only in very general terms. The government
also introduced testimony from a police detective
about the reliability of some, though not all, of the confidential
informants.
The judge wisely approached this material with caution
and in the end declined to make any explicit findings on the
subject. Instead, the judge relied on the government’s
presentation only very generally, and only to the extent that
it confirmed what the presentence report had already documented:
Adams is a headstrong young Vice Lords gang
member who began committing crimes at age 14 and immersed
himself in the gang’s subculture of firearms possession
and violence. That careful and limited approach raises
no due-process concerns and was certainly not an abuse of
discretion.
I. Background
In September 2015 Adams was 20 years old and already a
longtime member of the Vice Lords gang in Racine,
Wisconsin, with a lengthy record of criminal convictions as a
juvenile and adult. On September 25 he was walking down
the street with his 15-year-old cousin when a police squad
drove by and made a U-turn. As the officers passed by a
second time, Adams lifted his shirt and said, “Hey, I got
nothin’ on me.” The officers stopped and detained Adams on
No. 16-2928 3
a probation warrant, then retraced his steps to the place
where they first spotted him. There, under the wheelchair
ramp of a house, they found a 9mm semiautomatic handgun
affixed with a high-capacity 30-round magazine. Adams had
ditched the gun under the ramp when he first saw the police
approach. When questioned about it, Adams indicated that
he expected to get a short prison sentence for violating his
probation and a concurrent sentence for possessing the gun,
which he implied would not be a big deal.
Adams was charged with one count of possessing a firearm
as a felon in violation of 18 U.S.C. §§ 922(g) and
924(a)(2). The case was assigned to Judge Griesbach, and
Adams eventually pleaded guilty. The presentence report
(“PSR”) detailed Adams’s affiliation with the Vice Lords
gang in Racine and his lengthy criminal history as a juvenile
and adult, which included (among other crimes) several
firearms offenses and a battery. Indeed, and as the PSR
documented, before his latest arrest, Adams had been in
juvenile or adult custody almost continuously since the age
of 14. The PSR calculated an offense level of 21 and a
criminal-history category V, yielding a guidelines sentencing
range of 70 to 87 months in prison.
At sentencing Judge Griesbach considered and rejected
Adams’s challenges to the PSR and adopted the probation
officer’s calculation of the advisory range. He then invited
arguments from counsel on the § 3553(a) factors. At this
point the government’s sentencing memorandum came into
play. The prosecutor’s written submission pointed to evidence
linking Adams to as many as seven unsolved gangrelated
shootings in Racine, including a murder and an
attempted murder. Adams contested the reliability of the
4 No. 16-2928
government’s submission, especially to the extent that it
relied on statements from confidential informants. In light of
the dispute, the judge adjourned the hearing and gave the
parties an opportunity to supplement the record.
The government submitted a supplemental sentencing
memorandum, this time summarizing and quoting more
extensively from police reports—including those memorializing
Adams’s own statements, interviews with victims and
witnesses, and physical evidence—and describing in more
detail the statements of confidential and jailhouse informants
connecting Adams to the unsolved crimes. Most of the
shootings stemmed from gang rivalries in Racine.
As relevant here, Adams had been interviewed by police
in connection with at least two of the shootings. In one
interview he admitted to police that younger Vice Lords
members looked up to him as a “shot caller.” In the most
recent interview, conducted after his arrest for the present
offense, he was questioned about two of the shootings, both
of which occurred earlier in September 2015. He told the
police that he couldn’t have been the shooter in either case
because too few rounds had been fired. More specifically, an
officer mentioned that in one of the shootings, eight rounds
had been fired. Adams replied:
Eight rounds still ain’t enough. When you
talkin’ to me, it’s 17 or better. …
You ain’t just talking to anybody man, come
on. 17 or better, I’m talking about, and maybe
an extra clip to make it look like it was a
30 round the whole time it was two clips. No
eight rounds. That ain’t never been my type.
No. 16-2928 5
When the sentencing hearing reconvened, the government
called Detective Klinkhammer of the Racine Police
Department, who testified about the reliability of some,
though not all, of the confidential informants. After direct
and cross-examination of the detective, the judge asked
Adams’s attorney if he wanted to present any evidence.
Counsel said no, he’d rely on argument alone to contest the
government’s presentation.
The parties then presented their arguments on the
§ 3553(a) factors, primarily focusing on the reliability of the
government’s evidence connecting Adams to the seven
shootings. The government ultimately recommended a
within-guidelines sentence of 84 months consecutive to
Adams’s state sentence on his probation revocation. Adams’s
lawyer argued for a below-guidelines sentence of four or five
years concurrent with his client’s probation revocation.
At the conclusion of these arguments, Judge Griesbach
undertook a detailed analysis of the § 3553(a) factors. Addressing
the government’s contention that Adams was
implicated in the seven unsolved shootings, the judge specifically
acknowledged the “dangers of relying on confidential
informants [and] jailhouse snitches.” On the other hand, the
judge explained, “much of the evidence here is corroborated”—
some “by third parties” and some “by the
[d]efendant’s own statements.” Ultimately, however, the
judge declined to make specific findings about whether
Adams was involved in any of the shootings. Instead, he
considered the government’s evidence only insofar as it
corroborated a more general proposition about Adams’s
background that was already substantiated by the PSR.
6 No. 16-2928
More particularly, the judge summarized his consideration
of the government’s submission as follows:
Yes, I recognize that there’s certainly a risk in
relying on [the confidential informants]. We’re
not here—and actually I don’t even think I
need to put much weight on the confidential
informants, although I do note that the only
type of information you get here is often from
confidential informants. I’m not going to make
a finding on every one of the incidents the
[g]overnment has presented.
I am satisfied, though, from that evidence,
from the corroboration, from the [d]efendant’s
own words, that he is well involved in the violent
gang culture, including the use of firearms,
and the threatening of people, and using firearms
against people. So I am satisfied that—
but that’s certainly a factor that I have to consider
as well.
Moving to the remaining sentencing factors, the judge
explained that “there’s very little prosocial behavior here. No
real employment of any significance. No educational
achievement of any significance. The [d]efendant has really
gone from supervision, to youth corrections, to probation
and jail, to prison with very little stopping point[] in between.”
Accordingly, the judge found that the need for
deterrence “warrants a significant sentence here.” Finally,
after touching on other aspects of Adams’s background and
the need to protect the public, the judge settled on a sentence
at the top of the guidelines range: 87 months consecutive to
the state probation-revocation sentence.
No. 16-2928 7
II. Discussion
Adams argues that the evidence linking him to the seven
uncharged shootings is unreliable and that the judge impermissibly
relied on it to arrive at the 87-month sentence. In
the alternative, he maintains that he was deprived of an
opportunity to rebut the government’s evidence.
Our analysis is governed by some basic sentencing principles;
all are familiar. First, substantive sentencing review is
quite limited. The sentencing judge has substantial discretion
to weigh the § 3553(a) factors and arrive at an appropriate
sentence; we review the judge’s decision only for abuse
of discretion. Gall v. United States, 552 U.S. 38, 41 (2007). We
will set aside a sentence on substantive grounds only if it is
unreasonable, see Rita v. United States, 551 U.S. 338, 341
(2007), and a sentence within a properly calculated guidelines
range is presumptively reasonable, see United States v.
Martinez, 650 F.3d 667, 671 (7th Cir. 2011). Finally, a defendant
has a due-process right to be sentenced only on the basis
of reliable information. United States v. Zehm, 217 F.3d 506,
514 (7th Cir. 2000). But in determining what is and isn’t
reliable, the sentencing judge has considerable discretion to
“conduct an inquiry broad in scope, largely unlimited either
as to the kind of information [the judge] may consider, or the
source from which it may come.” Pepper v. United States,
562 U.S. 476, 489 (2011) (quoting United States v. Tucker,
404 U.S. 443, 446 (1972)).
Judge Griesbach held not one but two sentencing hearings
to provide both sides with the opportunity to present
evidence on the question of Adams’s involvement in the
seven shootings identified in the government’s sentencing
memorandum. The government’s supplemental memoran8
No. 16-2928
dum provided more detail about the evidence tying Adams
to the crimes. Together the two submissions summarized—
and in some cases, quoted—information contained in police
reports. Some of these reports recounted statements by
victims, witnesses, confidential informants, and Adams
himself. Although the prosecutor did not submit copies of
the underlying police reports to the court, the government
had earlier provided them to Adams in discovery. Notably,
Adams did not and does not argue that the government
misquoted, exaggerated, or otherwise misrepresented the
contents of the police reports.
The government also presented Detective Klinkhammer’s
testimony about the reliability of at least some of the confidential
informants, and Adams took the opportunity to
cross-examine the detective. Finally, the judge gave Adams
the opportunity to supplement the record and call witnesses
as he wished. He did neither.
In evaluating the reliability and weight of this evidence,
Judge Griesbach specifically acknowledged the shortcomings
of the government’s submission, commenting in particular
about the risk of placing too much stock in statements
from confidential informants and jailhouse snitches. Indeed,
the judge clarified that he didn’t put much weight on the
information provided by the confidential informants and
appears to have concluded that the government’s presentation
had at best only very limited evidentiary value; he
ultimately declined to make any factual findings that Adams
was implicated in any of the seven shootings. Instead, the
judge considered the government’s presentation at a very
high level of generality, concluding only that Adams “is well
involved in the violent gang culture, including the use of
No. 16-2928 9
firearms, and the threatening of people, and using firearms
against people.”
That assessment is fully supported by the PSR and the
recounting of Adams’s own statements as recorded in the
police reports. Adams acknowledged to the PSR writer that
he has been associated with the Vice Lords gang for as long
as he can remember and still considers himself a member of
the gang. The PSR writer also detailed multiple accounts in
which Adams possessed or used a weapon to threaten
others. Moreover, as we’ve already noted, Adams has a long
criminal record that includes juvenile and adult convictions
for weapons offenses and at least one violent crime.
Adams attacks the reliability of the confidential informants,
but he does not take issue with any of his own statements
bragging about his role in the gang and his use of
firearms. And of course he cannot erase his criminal history.
On this record we find nothing improper in the judge’s
cautious and limited consideration of the evidence of the
prior shootings.
In the end, the 87-month within-guidelines sentence is
presumed to be reasonable, and Adams has provided no
good reason to overcome the presumption. And because
Adams had the police reports well in advance and was given
ample time to develop a response, his complaint that he had
an insufficient opportunity to rebut the government’s
presentation is meritless.

Outcome: AFFIRMED.

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