United States v. Boatman, No. 14-2081 (7th Cir. 2015)

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Boatman pleaded guilty to one count of bank robbery, 18 U.S.C. 2113(a). After two hearings, the district court gave him a below-Guidelines term of 76 months’ imprisonment and three years’ supervised release, rejecting his request for a sentence of time served with community-based drug treatment. The Seventh Circuit affirmed, rejecting an argument that the sentence was procedurally flawed, because the district court failed to give meaningful consideration to his requested disposition. Boatman’s theory would demand more of the district court than the law requires.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 14-2081 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWARD BOATMAN, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 367 — James B. Zagel, Judge. ____________________ ARGUED NOVEMBER 10, 2014 — DECIDED MAY 15, 2015 ____________________ Before WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges. WOOD, Chief Judge. This appeal concerns the sentence that Edward Boatman received after he pleaded guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a). After two hearings, the district court gave him a belowGuidelines term of 76 months’ imprisonment and three years’ supervised release. In so doing, it rejected his request for a sentence of time served with community-based drug 2 No. 14-2081 treatment. Boatman argues that this sentence was procedurally flawed, because the district court failed to give meaningful consideration to his requested disposition. Boatman’s theory demands more of the district court than the law requires, however, and so we affirm its sentence. I On January 15, 2012, Boatman walked into a TCF Bank branch in Stickney, Illinois, and gave the teller the following note: “Fill The Bag With Stacks of 50’s and 20’s. I have a gun and will use it. If u decide to Put a ink bomb in the bag, Either I’ll be back for you or my partner. Chose your moves carefully [sic].” The teller complied by putting some money in a brown bag and giving it to Boatman. Boatman peered in the bag and told the teller that he wanted coins. The teller obliged him, and Boatman walked out. An audit of the teller’s drawer revealed that Boatman had robbed the bank of approximately $334.50. It was not long before a federal grand jury indicted Boatman for his crime, and on August 30, 2013, he entered a guilty plea. In its pre-sentence report, the Probation Office concluded that Boatman was a career offender. Following U.S. Sentencing Guideline § 4B1.1(b)(3), it calculated an offense level of 29 (using a base of 32 and subtracting three levels for acceptance of responsibility) and a criminal history of VI. Had Boatman not been a career offender, his base offense level would have been 20 under § 2B3.1(a); with two levels added for taking property of a financial institution, two added for a threat of death, and three subtracted for acceptance, his final offense level would have been 21. That level, along with criminal history category III (calculated on the basis of his four criminal history points), would have re- No. 14-2081 3 sulted in an advisory range of 46–57 months. In its sentencing memorandum, the government argued that Boatman’s two qualifying predicate convictions for career offender status, which together involved 0.8 grams of heroin that he sold for $40, were insignificant and accordingly warranted a downward departure from the Guidelines range. The prosecutor recommended a sentence of 120 months. Boatman also filed a sentencing memorandum, but he urged the court to impose a much lighter sentence. He stressed that without the career-offender enhancement, the low end of his Guidelines range would have been 46 months. He requested a sentence of time served (approximately 24 months) and drug treatment based on his long history of substance abuse problems involving cocaine and heroin. In support of this request, Boatman submitted a detailed report by a mitigation specialist who was also a certified addiction counselor. He also proffered empirical studies indicating that community-based treatment more effectively prevents recidivism. The court held what turned out to be the first day of its sentencing hearing on April 14, 2014. Boatman’s counsel discussed at some length the reasons for such a substantial deviation from the career-offender range; the government countered with information about the seriousness of Boatman’s offense, emphasizing Boatman’s express threat to the teller. Ultimately the court decided to continue the hearing until April 22 so that it could consider “how long [the court must] put him in or continue his incarceration to maximize his chance of getting into [the Residential Drug Abuse Program]” (the Program) run by the Bureau of Prisons (the Bureau). Before the hearing resumed, the government submit- 4 No. 14-2081 ted a supplemental sentencing memorandum directing the court’s attention to Tapia v. United States, 131 S. Ct. 2382, 2393 (2011), which held that a district court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” On April 22, 2014, the court acknowledged Tapia and declared that it would no longer consider the Program in determining the length of Boatman’s sentence. Instead, it emphasized the need to incapacitate Boatman given the seriousness of his offense, and it announced the sentence of 76 months. Boatman’s attorney then asked whether the court had considered Boatman’s history of drug addiction and the empirical evidence he submitted regarding drug treatment and recidivism. The judge responded that he had considered the materials, but that he had concluded that a term more substantial than Boatman’s suggested sentence was necessary for both adequate punishment and incapacitation. Boatman filed a timely notice of appeal from that judgment. II When we review a sentence imposed by a district court, we look first for procedural error; if none is present, we turn to the substantive reasonableness of the sentence. We review procedural sentencing errors de novo and substantive reasonableness only for abuse of discretion. United States v. Scott, 555 F.3d 605, 608 (7th Cir. 2009). Common 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 No. 14-2081 5 any deviation from the Guidelines range.” United States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Boatman contends that the district court erred by failing to give meaningful consideration to his arguments on the § 3553(a) factors. We grant that his arguments went far beyond those we have sometimes described as “stock”: they were significant and well supported. The question is therefore whether the court adequately considered them and gave a sufficient explanation for the weight it gave them. Before we turn to that question, however, we must address a wrinkle in the sentencing proceedings: the fact that they were spread over two days and interrupted by supplemental memoranda from the parties. A At the end of the hearing on April 14, the court appeared to be ready to recommend a relatively short sentence that would include a placement in the Program. It announced, however, that it was going to postpone its decision so that the parties could answer “a single question of how long [it would] have to put him in or continue his incarceration to maximize his chance of getting into [the Program].” The government filed a supplemental memorandum answering that direct question (approximately 24 months), but also properly alerting the court to the holding of Tapia. 131 S. Ct. at 2393. The government recommended the Program for Boatman, but it cautioned the court not to link the term of imprisonment to the treatment program. Boatman’s supplemental memorandum disputed the amount of time it takes a prisoner to complete the Program 6 No. 14-2081 and added two additional mitigation arguments. The first concerned Boatman’s detention in the Kankakee County jail from July 16, 2012, to August 13, 2013. His attorney argued that this detention was “substandard for federal detention” and had “an increased deterrent effect” (and thus presumably should count for more). Counsel’s second point was a request that the district court consider Boatman’s union membership as something that increased his chance of stable employment and made him a more promising candidate for rehabilitation. Boatman’s attorney mentioned the supplemental memos at the start of the April 22 proceedings. The district judge responded that he “was out of town yesterday,” perhaps to suggest that he had not had a chance to look at them. In any event, the second day of hearings reflected a different tone from the one that prevailed at the end of the first. Toward the end of the April 14 hearing, the court indicated that the career-offender enhancement was inappropriate for Boatman and that it was prepared to base the sentence on a 46- to 57-month Guideline range. It seemed receptive to Boatman’s arguments about his drug addiction. But by the start of the second hearing, the court was less sympathetic. It realized that Tapia prevented it from imposing a sentence long enough to permit completion of the drug treatment program. And in the end, the court chose a sentence between the lower range it had mentioned at the first hearing and the higher range recommended by Boatman’s (correctly calculated) career-offender status. Boatman does not explicitly challenge his sentence on the basis of the interruption in the sentencing proceeding, nor could he—there is no reason why a judge cannot continue a No. 14-2081 7 sentencing hearing if that seems desirable. The real problem seems to lie in the mixed signals from the two different days, and the difficulty that creates in ascertaining exactly what the court’s basis for the sentence was. It is unclear how the court meant to integrate its comments at the two hearings. The most natural understanding of what went on, however, is to treat the April 14 comments as tentative and to rest our analysis on the court’s statements at the April 22 hearing. B At sentencing, the judge must adequately “explain why the sentence imposed is appropriate in light of the statutory factors specified in § 3553(a).” United States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006). This explanation must go beyond mere lip service; it should “entail some discussion of any significant argument the defendant has made with respect to his characteristics that might bear on the length of the sentence.” United States v. Schmitz, 717 F.3d 536, 541 (7th Cir. 2013) (citation omitted). Although there is no rule requiring the district court to review every factor in every case, it touched on almost all of them here. § 3553(a)(1)—At the April 22 hearing, the court addressed “the nature and circumstances of the offense and the history and characteristics of the defendant” when it reviewed Boatman’s criminal history, his age, and the details of the crime. 18 U.S.C. § 3553(a)(1). It began by pointing out that Boatman “would’ve been much luckier” if he had received a longer sentence for one of his earlier offenses, presumably because he would have been deterred from further crime or he would have received help for his addictions. The court then said it would “discount” some of Boatman’s earlier criminal conduct because it was far in the past and not par- 8 No. 14-2081 ticularly egregious. It speculated that Boatman may be less likely to return to crime because he is now middle-aged. The court also discussed the circumstances of the offense. Referring to Boatman’s request for coins, it commented that “there was a certain level of desperation in this based on [Boatman’s] need for drugs.” § 3553(a)(2)—This factor covers the “need for the sentence imposed”; the court addressed it in the course of discussing the seriousness of the offense. “The basic problem with [Boatman’s] case,” the court reasoned, was that bank robbery is a grave and violent offense. It regarded Boatman’s threat of violence—“somebody confronting a teller and implicitly or explicitly threatening deadly harm”—as something that weighed against the mitigating factors of his relatively minor criminal history and his age. See, e.g., United States v. Castaldi, 743 F.3d 589, 591 (7th Cir. 2014) (affirming sentence where the “transcript makes clear that the judge found that the devastating financial harm [the defendant] inflicted … simply overwhelmed all of his arguments in mitigation”). § 3553(a)(3) & (4)—The court also discussed “the kinds of sentences available” and “the kinds of sentence and the sentencing range established for the applicable category of offense.” It found the guidelines sentence to be “very high” and observed that no one—not the government, not Boatman, not the Probation Office—believed that an in-range sentence was appropriate. In fact, the court noted, the government’s recommendation was “significantly lower than the bottom” of the range. In light of this explicit treatment of the points Boatman had raised, there is no basis for finding that the district court No. 14-2081 9 committed procedural error. See United States v. Grigsby, 692 F.3d 778, 791 (7th Cir. 2012). His case looks nothing like those in which we have vacated sentences for insufficient explanations. Boatman directs our attention to United States v. Vidal, 705 F.3d 742 (7th Cir. 2013) and United States v. Miranda, 505 F.3d 785 (7th Cir. 2007), but neither case helps him. In Vidal, we concluded that remand for resentencing was required for the district court to take a closer look at defendant’s psychiatric issues, because the court’s statement gave us no insight into the judge’s evaluation of that condition. Similarly, in Miranda the court’s brief mention of the defendant’s mental illness was not enough to explain what weight, if any, it gave to his schizoaffective disorder. It is true that the court in Boatman’s case could have said more. It did not offer a personalized evaluation of Boatman’s addiction, nor did it review on the record any of the evidence Boatman submitted in his sentencing memorandum. And that evidence was extensive. It included an individualized report by a certified addiction counselor, James Tibensky, about Boatman’s condition; a publication by the National Institute of Drug Abuse and a publication by the American Medical Association, both citing long-term studies that establish the effectiveness of drug-treatment programs for incapacitation; and a speech by then-Attorney General Holder suggesting the same. Taken together, these materials provide strong support for the position that the national strategy of incarcerating drug addicts has been ineffective. Drug treatment programs, they contend, would do more to reduce recidivism, and Boatman is one of many prisoners who would benefit from such a shift. The court’s failure to address this well-supported argument is troubling. When a defendant submits individualized reports and scientific 10 No. 14-2081 studies in support of his sentencing memorandum, the better practice is for the court to address these materials specifically. Nonetheless, unlike the judge in Vidal who mechanically adopted the probation officer’s report, 705 F.3d at 743, the judge here told Boatman that the court had considered the “significant focus” of the April 14 hearing on Boatman’s drug use as well as the supplemental briefing on the Program and that this information had affected the final sentence. In the judge’s words, if he had “not viewed much of it as a mitigation in his case, the sentence would’ve been 120 months not 76 months.” While more would have been helpful, the court said enough on the record to assure us that it had considered Boatman’s argument and, more, that Boatman’s submission had contributed to the below-guidelines sentence. The court acknowledged that Boatman had submitted, “interwoven with the history and analysis of his drug problems,” evidence “that therapeutic interventions … for which he has volunteered would lessen his danger to the community.” As it was entitled to do, it decided how much weight to give to that evidence. Right after the earlier comment, it said that “[t]he thing that got me to the sentence here that I imposed had more to do with retributive aspect of the law and the incapacitation aspect which are two of the four purposes which underlie all sentencing.” In short, the court concluded that Boatman’s drug use and the promising empirical evidence about drug treatment did not outweigh the need for retribution and incapacitation. See, e.g., United States v. Dachman, 743 F.3d 254, 262 (7th Cir. 2014); United States v. Haskins, 511 F.3d 688, 696 (7th Cir. 2007). No. 14-2081 11 If the court had not given a reason for rejecting the request for time served and had not recommended that the Bureau of Prisons consider therapeutic alternatives, Boatman’s appeal would be more compelling. But it explained its action by reference to the seriousness of the offense, a factor it is required to consider under § 3553(a)(2). See Schmitz, 717 F.3d at 541 (citing Rita v. United States, 551 U.S. 338, 356 (2007)). Furthermore, when Boatman’s lawyer asked the court to recommend the Program, the judge responded, “I will recommend consideration of therapeutic alternatives to drug use.” And it kept that promise. The fact that the court asked the Bureau to consider alternative drug treatment while Boatman is in custody reveals that the judge was well aware of Boatman’s principal argument, which focused on the benefits of drug rehabilitation. These two comments— rejecting time served because of the gravity of the offense and recommending that the Bureau consider therapeutic alternatives—reassure us that the judge meaningfully considered Boatman’s principal request. III While the district court did not respond in terms of the empirical evidence or the mitigation expert’s report that Boatman submitted, it did meaningfully consider Boatman’s request by explaining how that request was outweighed by other § 3553(a) factors. The court considered Boatman’s principal argument for drug treatment but was unpersuaded in light of the seriousness of the bank robbery. Its resolution of these matters did not stray beyond the bounds of its discretion, and so its sentence is AFFIRMED.

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