United States v. Ballard, No. 20-2381 (7th Cir. 2021)
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Ballard has a long and violent criminal history: the court listed 50 convictions between the age of 17 and his current age, over 50. In 2018, Ballard pleaded guilty to being a felon in possession of a firearm. The judge determined Ballard was an armed career criminal and sentenced him to 232 months. Ballard appealed, arguing that two prior Illinois attempted residential burglary convictions were not violent felonies after the Supreme Court held the Armed Career Criminal Act's residual clause unconstitutional. At his 2019 resentencing, Ballard's guideline range was 33-41 months. The judge imposed a sentence of 108 months. The Sixth Circuit remanded.
At the third sentencing, in 2020, Ballard's guidelines range was 33-41 months. The government and Ballard both recommended a sentence of 63 months. The judge sentenced Ballard to 92 months. The Seventh Circuit affirmed, rejecting arguments that the sentence is procedurally and substantively unreasonable and that the judge failed to justify the 125% variance and failed to consider disparity and mitigation. The judge complied with the remand instructions, addressing the Sixth Circuit’s concerns specifically, in detail. The serious nature of the offense, Ballard’s age, the long and dramatic and dangerous criminal history, the continual recidivism, and the continued need for deterrence and incapacitation for the protection of the public, “overwhelm the relatively minor potential mitigating factors.”
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 20-2381 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JESSE J. BALLARD, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 17-CR-40079-JPG — J. Phil Gilbert, Judge. ____________________ ARGUED FEBRUARY 24, 2021 — DECIDED SEPTEMBER 2, 2021 ____________________ Before FLAUM, MANION, and KANNE, Circuit Judges. MANION, Circuit Judge. This is a successive appeal regarding sentencing. 1 Jesse Ballard pleaded guilty to being a felon in possession of a rearm. The district judge has sentenced him three di erent times for this o ense. Ballard now argues 1 The panel that decided Appeal No. 19-2103 is treating this appeal as successive under this court’s Operating Procedure 6(b). 2 No. 20-2381 the third sentence is procedurally and substantively unreasonable. But we a rm. I. Ballard’s Background Ballard has a long and violent criminal history: Age Crime Location 17 Petty larceny Florida 18 Attempted kidnapping, aggravated Florida battery 21 Theft Illinois 23 Battery Illinois 23 Theft Illinois 24 Illegal transportation of liquor Illinois 24 Illegal transportation of alcohol Illinois 24 Knowingly damage property Illinois 24 Attempted residential burglary Illinois 24 Attempted residential burglary Illinois 24 Contributing to the delinquency of a Illinois child 25 Forgery Illinois 27 Aggravated assault Mississippi 30 Battery Illinois 31 Interference with city o cer Illinois 31 Driving on a revoked license Illinois 32 Battery Illinois No. 20-2381 3 32 Criminal damage to property Illinois 32 Battery Illinois 33 Unlawful possession of a weapon by Illinois a felon 35 Domestic battery 35 Unlawful possession of a controlled Illinois substance (methamphetamine) 36 Aggravated battery Illinois 36 Unlawful use of a credit card Illinois 36 Domestic battery Illinois 41 Domestic battery Illinois 42 Driving on a suspended/revoked li- Illinois cense 43 Drunkenness Illinois 43 Driving while license revoked Illinois 43 Driving while license revoked Illinois 44 Obstruct justice Illinois 46 Driving while license revoked Illinois 49 Driving while license revoked Illinois 49 Tease police/service animal Illinois 50 Driving while license revoked Illinois 50 Driving on revoked/suspended Illinois Illinois 4 No. 20-2381 His crime wave has persisted largely unabated. He continues to break the law after turning 50. The judge called this one of the longest criminal histories he had ever seen. II. Procedural Posture Ballard pleaded guilty in this case to being a felon in possession of a rearm. This is, of course, a very serious and potentially dangerous crime. At the rst 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. 183294 (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 de cient 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 justi cation. 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] nds 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 su ciently 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 su cient, compelling justi cation 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 justi cation is su ciently 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 signi cant justi cation 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 justi cation based on factors in section 3553(a) that the judge must o er 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 su cient 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 signi cant justi cation.” 732 F.3d 736, 742 (7th Cir. 2013). But the judge at the third sentencing did explain the justi cation for the third sentence thoroughly. The judge gave serious, well thought-out, compelling justi cations 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 o enses, attempted residential burglary, kidnapping, battery, aggravated assault, which was amended down from rape; possession of a rearm. 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 o ense: The Defendant posted on his Facebook several pictures depicting large amounts of rearms, cash, marijuana, bath salts and other drugs. Ballard bragged on Facebook that he had 12 additional rearms. One picture he posted on Facebook depicted Mr. Ballard holding a 8 No. 20-2381 sawed-o shotgun with the barrel under his chin, with his nger on the trigger portraying him committing suicide. This rearm 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 rearms, resulting in this conviction. In addition to Ballard instructing his girlfriend to get rid of the sawed-o 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 o ense 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, nding 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 justi cation 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 justi es 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 satis ed 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 su cient, 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 o ense 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 o ense level of 13 to o ense level 23. This di erence of 10 o ense levels is another way of showing how extreme the variance was at the second sentencing hearing, and thus how much more justi cation 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 nds 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 signi cant upward variance and he explained his justi cations in detail. He performed the guideline-aligning we recommended: “[T]he Court is going from an o ense 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, nding that based upon the 3553(a) factors that that sentence is su cient 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 o ense. 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 o ense 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 con rmed 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 rearms, 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 rst 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 di erence between the rst 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 rst sentencing hearing when the upward variance was only 10%. But the actual sentence imposed at the rst sentencing hearing was much higher than the actual sentence imposed at the third sentencing hearing because of the rst 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 rst sentencing hearing because the ACCA already provided for a large sentence at the rst hearing. In other words, multiple di erent 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 rst 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 rst 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 speci cally and in detail. We nd 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 speci c circumstances of the instant o ense that called for a lower sentence. Ballard argues that his girlfriend owned the subject rearm for her own protection. He argues he did not possess the rearm 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 rearm 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 o ense 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 o ense. If anything, Ballard’s posing for the photos and sharing them on social media arguably demonstrates a heightened level of agrant 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-point reduction 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 di erent 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 “signi cant 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 signi cant 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 signi cant 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 signi cant 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 o every possible sentencing factor or detail and discuss, separately, every nuance of every argument.” (internal quotation marks omitted)). The serious nature of the instant o ense, Ballard’s age at the time of the instant o ense, 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 factors. IV. Conclusion Finding no procedural or substantive error, we a rm.
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