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Date: 09-29-2021
Case Style:
United States of America v. Jesse Ballard
Case Number: 20-2381
Judge: Daniel Anthony Manion
Court: United States Court of Appeals
For the Seventh Circuit
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Chicago, IL - Criminal defense lawyer represented defendant with a felon in possession of a firearm charge.
Ballard pleaded guilty in this case to being a felon in possession of a firearm. This is, of course, a very serious and potentially dangerous crime.
At the first sentencing hearing, on October 22, 2018, the
district judge determined Ballard was an armed career criminal and sentenced him to 232 months in prison. Ballard appealed (18-3294). He argued his two prior Illinois attemptedresidential-burglary convictions were not violent felonies under the ACCA after the Supreme Court held the residual
clause unconstitutional in Samuel Johnson v. United States, 576
U.S. 591, 606 (2015). The government confessed its error. We
remanded for resentencing. United States v. Ballard, No. 18-
3294 (7th Cir. Feb. 4, 2019) (order granting motion for remand)
(“Ballard I”).
At the second sentencing, on May 28, 2019, Ballard faced a
guideline range of 33 to 41 months. The judge imposed a sentence of 108 months. Ballard appealed again (19-2103). He argued that the indictment and factual basis for his plea were
deficient and that the sentence was procedurally and substantively unreasonable. We found a procedural error in Ballard’s
108-month sentence because the district judge imposed a
160% upward variance from the high end of the guideline
range without giving an adequate justification. We remanded
for resentencing. We recommended that the district judge
“align Ballard’s sentence more closely to the Guidelines by
moving incrementally down the Category VI column of the
No. 20-2381 5
sentencing table until [he] finds an appropriate Guidelines
range … .” United States v. Ballard, 950 F.3d 434, 439 (7th Cir.
2020) (“Ballard II”).
At the third sentencing, on June 30, 2020, Ballard again
faced a guideline range of 33 to 41 months. The government
and Ballard both recommended a sentence of 63 months. But
the judge sentenced Ballard to 92 months, 125% above the
high end of the range. Ballard appeals again. He argues the
sentence is procedurally and substantively unreasonable. He
argues the judge failed to justify the 125% variance and failed
to consider disparity and mitigation.
III. Discussion
Ballard raises two basic issues on appeal. First, he argues
the 92-month sentence is procedurally unreasonable because
the judge did not sufficiently explain the upward variance of
125%. Second, he argues the 92-month sentence is substantively unreasonable in light of mitigating evidence the judge
did not consider and in light of disparity with other sentences.
A. Procedural Error
We review procedural challenges de novo. United States v.
Lockwood, 739 F.3d 773, 781 (7th Cir. 2015).
Ballard argues the judge committed procedural error by
failing to give sufficient, compelling justification to support
an extreme variance. After United States v. Booker, 543 U.S. 220
(2005), a district judge has discretion to impose a sentence outside the guideline range. But the judge “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance … .”
United States v. Miller, 601 F.3d 734, 739 (7th Cir. 2010).
6 No. 20-2381
The more extreme a variance is, the more thorough the
explanation must be. United States v. Castillo, 695 F.3d 672, 673
(7th Cir. 2012). “A major departure should be supported by a
more significant justification than a minor one.” Miller, 601
F.3d at 739 (internal brackets and quotation marks omitted).
“[T]he farther the judge’s sentence departs from the
guidelines … the more compelling the justification based on
factors in section 3553(a) that the judge must offer in order to
enable the court of appeals to assess the reasonableness of the
sentence imposed.” Castillo, 695 F.3d at 673. Failing to
adequately explain a sentence is procedural error. United
States v. Faulkner, 885 F.3d 488, 498 (7th Cir. 2018). In United
States v. Johns, where the defendant faced a reduced guideline
range on remand, we warned that “[r]egardless of whether
the judge gave a sufficient explanation for [an upward
departure at the original sentencing], a more substantial
departure from a lower guidelines range on resentencing
should be supported by a more significant justification.” 732
F.3d 736, 742 (7th Cir. 2013).
But the judge at the third sentencing did explain the justification for the third sentence thoroughly. The judge gave serious, well thought-out, compelling justifications for the sentence.
He considered Ballard’s history and characteristics to be
“horrendous.” (Sent. Tr., June 30, 2020, DE 151 at 29 & 30.) He
reiterated that Ballard’s “long criminal history” is “probably
one of the worst I have seen … .” (Id. at 30.) He noted that
Ballard “has not demonstrated [respect for the law] throughout his life so far.” (Id.)
The judge said Ballard is “a poster child for the 3553(a)
factors of no respect for the law.” (Id.) The judge noted the
No. 20-2381 7
plain facts that previous sentences have not deterred Ballard
from committing crimes and that the public needs protection
from further crimes he “may and likely will commit based on
his history and characteristics of lawlessness.” (Id.) The judge
recited Ballard’s lengthy and dangerous criminal history:
[H]is history is one of theft, battery, attempted kidnapping, aggravated battery, domestic battery, illegal
transportation of alcohol, damage to property, attempted residential burglary, forgery, and the list goes
on, not to speak of the current felon in possession of a
gun. And, guns are associated with violence for which
there’s too much of in this district, state, and nation.
(Id. at 31.)
The judge emphasized the violent nature of Ballard’s recidivism:
Mr. Ballard’s prior criminal history involves very violent offenses, attempted residential burglary, kidnapping, battery, aggravated assault, which was amended
down from rape; possession of a firearm. Ballard has
many parole violations and committed several infractions during previous periods of incarceration.
(Id. at 32.)
The judge elaborated on the nature and circumstances of
the offense:
The Defendant posted on his Facebook several pictures
depicting large amounts of firearms, cash, marijuana,
bath salts and other drugs. Ballard bragged on Facebook that he had 12 additional firearms. One picture he
posted on Facebook depicted Mr. Ballard holding a
8 No. 20-2381
sawed-off shotgun with the barrel under his chin, with
his finger on the trigger portraying him committing suicide. This firearm was not one set forth in the indictment.
During a search of Mr. Ballard’s residence on October
18, 2017, agents seized drug paraphernalia, in addition
to the firearms, resulting in this conviction. In addition
to Ballard instructing his girlfriend to get rid of the
sawed-off shotgun, which is accounted for in adjustment for obstruction of justice, he also instructed her to
get rid of drug paraphernalia that could implicate the
Defendant.
(Id. at 31.)
The judge evaluated Ballard’s personal characteristics.
Ballard “admitted he withdrew from high school after he got
caught with marijuana and beat up a teacher.” (Id. at 32.) Ballard “has a poor employment history. He was terminated
from one job after his employer at a factory caught him throwing away good product to catch up on his line.” (Id.)
The judge understood a high variance required a thorough
explanation: “I agree that the greater the variance from the
guidelines, the more explanation is needed.” (Id. at 33.) He
observed that Ballard “has the history and characteristics of
someone who, for whatever reason, cannot or will not lead a
law-abiding life.” (Id. at 34.) The judge noted that even Ballard
“agreed it’s been a revolving door for him.” (Id.) The judge
observed that prior sentences have not deterred Ballard from
committing crimes. The judge emphasized the importance of
protecting the public from further crimes.
No. 20-2381 9
He characterized Ballard as “an abnormally extreme Defendant in terms of his lawlessness starting at age 17. He’s just
been in and out of jail his entire life. … The only life Mr. Ballard knows is committing crimes.” (Id. at 34–35.)
The judge explained he was “going from an offense level
of 13 to 23, which is a [guideline range of] 92 to 115 months,
and giving him the low end of the guideline range from 13 to
23, finding that based upon the 3553(a) factors … .” (Id. at 36.)
The judge sentenced Ballard to 92 months in prison.
The judge gave a detailed, thorough, adequate explanation of the justification for the sentence. We uphold aboveguideline sentences against this type of challenge for procedural error when the judge gave an adequate statement of reasoning that justifies the degree of variance from the guidelines, consistent with the § 3553(a) factors. Faulkner, 885 F.3d
at 498; United States v. Lewis, 842 F.3d 467, 477–78 (7th Cir.
2016).
The judge satisfied the concerns we raised in Ballard II.
There, we noted that the judge did not invoke the rationale
that protecting the public from Ballard’s continued criminal
behavior (a required § 3553(a) factor) logically requires a
greater variance from a lower guideline range than from a
higher one.
But the judge expressly addressed this issue at the third
sentencing hearing. For example, he said: “Previous sentences
have not deterred [Ballard] from committing future crimes,
and the public needs to be protected from further crimes he
may and likely will commit based on his history and characteristics of lawlessness.” (Sent. Tr., DE 151 at 30.) The judge
went on to emphasize that prior sentences have not deterred
10 No. 20-2381
Ballard, and that “[p]rotecting the public from further crimes
is a major factor in a Judge’s decision in coming up with an
appropriate sentence that is sufficient, but not greater than
necessary to comply with the sentencing objectives.” (Id. at
34.)
In Ballard II, we also raised an alternative way to judge the
magnitude of a departure: “use the number of offense levels
rather than percentage deviations.” Ballard II, 950 F.3d at 437
(internal quotation marks omitted). We noted that Ballard’s
108-month sentence at the second sentencing only comes
within range, given his criminal history category of VI, by
moving down the sentencing table from Ballard’s offense
level of 13 to offense level 23. This difference of 10 offense levels is another way of showing how extreme the variance was
at the second sentencing hearing, and thus how much more
justification the judge was required to provide. We recommended the judge align Ballard’s sentence more closely to the
guidelines by moving incrementally down the category VI
column of the sentencing table until he finds an appropriate
guidelines range, as suggested by U.S.S.G. § 4A1.3(a)(4)(B).
The judge addressed these issues at the third sentencing
hearing. He knew he was imposing a significant upward
variance and he explained his justifications in detail. He
performed the guideline-aligning we recommended: “[T]he
Court is going from an offense level of 13 to 23, which is a 92
to 115 months, and giving him the low end of the guideline
range from 13 to 23, finding that based upon the 3553(a)
factors that that sentence is sufficient but not greater than
necessary … .” (Sent. Tr., DE 151 at 36.)
In Ballard II, we noted that the judge focused on Ballard’s
extensive criminal history and hardly addressed the
No. 20-2381 11
circumstances and nature of the current offense. Ballard II, 950
F.3d at 438.
The judge addressed this issue at the third sentencing
hearing. He addressed the nature and circumstances of the instant offense at length. And he noted that “guns are associated
with violence for which there’s too much of in this district,
state, and nation.” (Sent. Tr., DE 151 at 31.)
Ballard argues that the judge’s analysis of the instant offense conduct improperly included irrelevant and unsubstantiated conduct. He argues it was not confirmed that all the Facebook photos were his. He argues there is no evidence that
his boast about owning multiple other guns was anything
other than fantasy. But Ballard made no objections at resentencing to the Presentence Investigation Report’s statements
on these subjects. As the government argues, if these were not
his Facebook photos or if his boast were mere fantasy, he
should have argued that in the lower court.
Ballard argues that his possession of other firearms, his
drug dealing, and his possession of drug paraphernalia is not
relevant to the instant charge. But these actions are additional
uncharged criminal conduct—not already factored into the
guidelines—which the judge may consider. See United States
v. Bridgewater, 950 F.3d 928, 932 (7th Cir. 2020); United States v.
Holton, 873 F.3d 589, 591–92 (7th Cir. 2017).
Ballard argues that the judge did not account for his argument that the older convictions are not good indicators of recidivism. Ballard argues the judge did not explain his reason
for rejecting the Commissioner’s conclusion that the relationship between old convictions and recidivism is very weak. But
in this case, we do not need to guess whether Ballard is prone
12 No. 20-2381
to recidivism. He is already recidivating. By his own account,
he spent about 80% of his adult life in prison or on parole.
And he has committed violations and infractions in prison
and has violated parole many times.
Ballard argues the judge provided essentially the same explanation for the 125% upward variance at the third sentencing as he did at the prior two sentencings. Ballard’s point is
that these same factors discussed by the judge at the third sentencing were present before, and yet the first sentence was
only 10% above the prior guideline range. So why would
those same factors justify a 125% upward variance now?
First, the judge added additional factors (or additional emphasis on factors) to his explicit consideration at the third sentencing hearing, in accordance with our opinion in Ballard II.
Second, there was a major difference between the first sentencing hearing and the second two: the ACCA. It is true that
the same factors were present—and the judge discussed many
of them—during the first sentencing hearing when the upward variance was only 10%. But the actual sentence imposed
at the first sentencing hearing was much higher than the actual
sentence imposed at the third sentencing hearing because of
the first sentence’s unconstitutional reliance on the ACCA.
Thus there was no need for certain details relied on by the
judge at the third sentencing hearing to expressly and independently raise the sentence during the first sentencing hearing because the ACCA already provided for a large sentence
at the first hearing. In other words, multiple different factors
can combine to justify a sentence that a portion of them supported independently. A judge does not always need to explain exactly which factors independently justify exactly what
portions of a single sentence.
No. 20-2381 13
A judge is not compelled to impose a sentence higher than
a mandatory minimum just to leave himself room for discretion if the case is remanded to him because the mandatory
minimum turns out to be unconstitutional. The judge here
picked up on this point at the second sentencing hearing:
“You know, I guess maybe the first time around I should have
given Ballard a life sentence, and then when it came back the
Appellate Court could have compared the percentages.”
(Sent. Tr., DE 151 at 33.)
When a judge gives a sentence 10% above the top of the
guideline range at a first sentencing hearing, he is not locked
into that percentage at future sentencing hearings for the
same crime on remand. For one thing, a mandatory minimum
might have covered some of the needs to satisfy the § 3553(a)
factors before the mandatory minimum was found unconstitutional. For another thing, 10% of X is not the same as 10% of
Y.
The judge complied with our instructions in Ballard II. He
addressed our concerns specifically and in detail. We find no
procedural error.
B. Substantive Error
Finding no procedural error, we turn to Ballard’s claims of
substantive error. We review these claims for abuse of discretion. Faulkner, 885 F.3d at 498 (“A sentence is substantively unreasonable only when the district court abused its discretion
in imposing the sentence in question.”); Miller, 601 F.3d at 739.
Ballard argues the judge ignored specific circumstances of
the instant offense that called for a lower sentence. Ballard argues that his girlfriend owned the subject firearm for her own
protection. He argues he did not possess the firearm for
14 No. 20-2381
another illegal purpose. But we are not persuaded that it was
an abuse of discretion not to lower the sentence based on these
factors. A felon possessing a firearm owned by someone else
presents a danger to society, even if he had no further illegal
purpose. This is particularly true when the felon has an extensive and dangerous criminal history.
Ballard argues the subject offense was discovered due to
his own actions. He shared pictures of himself holding the
gun on social media. But Ballard does not make any arguments about why that would mitigate the seriousness of the
offense. If anything, Ballard’s posing for the photos and sharing them on social media arguably demonstrates a heightened
level of flagrant disregard for the law.
Ballard argues he accepted responsibility and timely entered a guilty plea. This is, of course, commendable. And he
received a three-pointreduction for acceptance of responsibility.
Ballard argues his sentence is disparate from sentences
some other defendants received for possessing guns as felons.
But that is because Ballard is a different sort of defendant. The
judge made this abundantly clear. He characterized Ballard as
“an abnormally extreme Defendant in terms of his lawlessness starting at age 17. He’s just been in and out of jail his entire life. … The only life Mr. Ballard knows is committing
crimes.” (Sent. Tr., DE 151 at 34–35.) The judge observed that
Ballard’s criminal history was long and violent. By Ballard’s
own account, he has spent about 80% of his adult life in prison
or on parole. And he has committed infractions in prison and
violated parole terms. Giving Ballard the same sentence as a
run-of-the-mill felon in possession would have been disparate.
No. 20-2381 15
Ballard also argues the judge did not take into account
“significant mitigating evidence”: (1) Ballard was 53 years old
at the third sentencing, so he had a reduced risk of recidivism;
(2) his sister, with whom he had a special bond, died in a car
wreck when he was only 10; (3) he is now in a long-term, stable relationship; (4) he recently completed a substance-abuse
treatment program and entered into another program; (5)
while incarcerated, he reported and prevented another inmate’s planned attack on a guard; and (6) he had a perfect
disciplinary record (during at least a recent stint) in prison.
Ballard argues the judge failed to acknowledge these mitigating factors in the § 3553(a) analysis.
The judge did not abuse his discretion in not treating Ballard’s age as significant mitigating evidence because Ballard’s
age has in fact not reduced his likelihood of committing
crimes. Ballard committed the instant crime at age 50. As the
government puts it, “Ballard’s actions in the instant case show
age is not a barrier to him continuing his criminal activity.”
(Appellee Br. at 35.) At the third sentencing hearing, the judge
asked Ballard for his current age. Ballard said he was 53. But,
again, we do not need to predict in this case whether advancing age decreases Ballard’s risk of recidivism because he is recidivating even as his age advances.
The judge did not abuse his discretion in not treating the
untimely death of Ballard’s sister as significant mitigating evidence. Certainly the situation is sad and traumatic. But society teems with sad, traumatized citizens abiding by the law.
And the untimely death does nothing to protect society from
Ballard’s ongoing propensity to break the law.
Nor did the judge abuse his discretion in not treating the
other listed factors as significant mitigating evidence. He need
16 No. 20-2381
not mention every potential mitigating factor in detail. See
United States v. Chapman, 694 F.3d 908, 914 (7th Cir. 2012)
(“[E]ven when arguments in mitigation are supported factually, judges need not tick off every possible sentencing factor
or detail and discuss, separately, every nuance of every argument.” (internal quotation marks omitted)). The serious nature of the instant offense, Ballard’s age at the time of the instant offense, the long and dramatic and dangerous criminal
history, the continual recidivism and lack of respect for law,
and the continued need for deterrence and incapacitation for
the protection of the public overwhelm the relatively minor
potential mitigating factor.
Outcome: Finding no procedural or substantive error, we affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: