by Dale Chappell

The U.S. Court of Appeals for the Seventh Circuit held on June 19, 2020, that a district court resentencing someone again to the maximum sentence possible and well over double the recommended Guidelines sentencing range (“GSR”) must provide “especially compelling justification” for such a significant increase in the sentence. The holding reiterated the Court’s position that the Guidelines already take into account most details of an offense, and such deviations from the GSR must be rare.

Over 20 years ago, a jury convicted Jerry Jones of two car jackings, armed bank robbery, and using a firearm in furtherance of each of those crimes. The U.S. District Court for the Southern District of Indiana sentenced him to 70 years in federal prison without parole. Recently, Jones filed a “savings clause” petition challenging his sentence, which was granted. However, the same court simply resentenced him to the same 70 years, saying that his crimes were “horrific” and Jones was a “violent predatory individual.”

At resentencing, Jones’ new GSR was just 168-210 months on the substantive counts, plus the use of firearm convictions under the newly revised 18 U.S.C. § 924(c), in light of the First Step Act. His new effective GSR was 348-390 months. The Government had argued for a 40-year sentence, but they got one better: The court imposed the same 70-year sentence, citing Jones’ offense conduct.

On appeal, Jones argued that the district court procedurally erred by failing to justify the 450-month deviation from the new GSR and failed to follow the paradigm under 18 U.S.C. § 3553(a), which mandates that a sentence must be sufficient, but not greater than necessary, to achieve the purposes of sentencing. Reviewing the sentence de novo, the Seventh Circuit agreed — and more.

The Court announced nothing new in finding Jones’ sentence was procedurally unreasonable. Citing a host of its prior cases requiring a district court to fully explain its reasons for imposing a sentence well above the GSR, the Court reiterated that a district court must “adequately explain” any deviation from a GSR. There must be a “compelling justification” for any deviation, and the further a sentence deviates from a GSR, “the more detailed the district court’s explanation must be,” the Court instructed. A significant deviation, like the one in Jones’ case, “requires an especially compelling justification,” the Court said.

Here, there was nothing in the record showing the district court gave “respectful consideration” to the GSR and failed “to understand the relation between the Guidelines and the ultimate sentence.” It also failed to give any reason for “ignoring” the Sentencing Commission’s recommendation under the Guidelines.

A statutory maximum sentence “creates a risk of unwarranted disparity with how similar offenders fare elsewhere,” the Court noted. The reason the U.S. Sentencing Guidelines were created was to stop such disparities, and they already take into account offense conduct and even a defendant’s criminal history in recommending a GSR, the Court explained. Saying that Jones’ crimes were “horrific” is not a valid reason to more than double his recommended sentence, the Court chided. “The district court needed to specify the reasons why Jones is different from the vast majority of defendants – many of whom also have criminal histories, are dangerous, and must be incapacitated to protect society,” the Court said.

The Court also reminded that sentencing courts “should reserve the statutory maximum for unusual cases. Otherwise, [they] leave little room for the marginal deterrence of persons whose additional deeds are more serious.” [Note that the Court considered imposing a maximum sentence as being a “marginal deterrence” of future crimes, an interesting view on sentencing by the Court.] The Court said that “if the district court decides that the Guidelines underrepresent reality, it should so state and clarify how it uses those findings” to justify a higher sentence.

Another point the Court made was whether the First Step Act’s change in law for § 924(c) convictions applies to Jones on resentencing. While the Government apparently did argue in a cross-appeal that it didn’t, it then withdrew that appeal and then argued in its reply brief that the new law doesn’t apply to Jones. The Court concluded that this was an “inappropriate request in a reply brief” and that the Government forfeited its argument against applying the First Step Act by withdrawing its cross-appeal. The Court also explained that the law-of-the-case doctrine prevents this issue on remand. In short, the Court implied that the First Step Act would apply to Jones on remand for resentencing.

Accordingly, the Court vacated Jones’ sentence and remanded for another resentencing. See: United States v. Jones, 962 F.3d 956 (7th Cir. 2020).

Writer’s note: Jones pushed for the First Step Act to apply at resentencing for an important reason: Under the changes to § 924(c) by the First Step Act, the consecutive sentences for his “stacked” § 924(c) convictions had to be vacated. That’s because § 403 of the First Step Act modifies § 924(c) so that subsequent convictions could only apply after an earlier § 924(c) conviction “has become final.” This eliminates stacking. This is also important because the Court recognized that a resentencing allows a non-retroactive section of the First Step Act to apply to Jones. However, not all courts are on the same page. Compare Carter v. United States, 2020 U.S. Dist. LEXIS 68343 (D. Md. 2020) (collecting cases that resentencing under § 404 of the First Step Act – crack reduction – is not “plenary” resentencing to allow application of § 403 of the Act), with Randall v. United States, 2019 U.S. Dist. LEXIS 228296 (E.D. Va. 2019) (holding § 404 relief “unbundled” the “sentencing package” to allow application of § 403 and removal of stacked § 924(c) convictions).

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