In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1028
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
R ODNEY B ROWN,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-CR-20080—Joe Billy McDade, Judge.
A RGUED O CTOBER 29, 2009—D ECIDED JUNE 22, 2010
Before F LAUM, M ANION, and W OOD , Circuit Judges.
W OOD , Circuit Judge. When Rodney Brown pleaded
guilty to distributing more than five grams of crack
cocaine, it looked as if he was about to go to prison for
a long time. Brown had a prior drug conviction, and so
he faced a mandatory minimum sentence of 120
months’ imprisonment. To make matters worse, his
two previous convictions for aggravated assault quali-
fied him as a career offender for purposes of § 4B1.1
2 No. 09-1028
of the U.S. Sentencing Guidelines, and this bumped up
his recommended guidelines sentence to 262-327 months’
imprisonment.
At the sentencing hearing, the district court limited
itself to making a few negative remarks about Brown’s
character and capacity for change. It then surprised the
parties by sentencing Brown to the lowest possible point
available to it, the 120-month mandatory minimum, a
full 142 months below the low end of the guidelines
range. In its terse explanation of the sentence, the
district court mentioned only Brown’s age (40 years old),
the short length of his previous state sentences, and
the conditions of his upbringing.
The government has appealed the sentence. Although a
sentence so far below the recommended guidelines
range lies within the court’s power, and may even
have been justified in this case, the record is too spare
to support that conclusion at this point. We therefore
vacate Brown’s sentence and remand for resentencing.
I
In the spring of 2007, the Champaign (Illinois) Police
Department enlisted the services of a confidential infor-
mant to help it go after the local drug dealers. After the
informant tipped the authorities to Brown’s dealings
in cocaine, officers had the informant engage in a con-
trolled purchase of crack cocaine from Brown. Video and
audio recording devices captured Brown handing over
13.3 grams of crack in exchange for $400 in pre-recorded
currency.
No. 09-1028 3
On August 7, 2007, a grand jury indicted Brown on
two charges: distributing five grams or more of crack
cocaine and possession with intent to distribute crack
cocaine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(C).
A few months later, Brown entered into a written plea
agreement with the government and pleaded guilty to
the distribution count. The Probation Office prepared a
presentence report (PSR) that placed Brown’s guidelines
range between 262 and 327 months of imprisonment,
based on an offense level of 34 and a criminal history
category of VI. Brown faced such a lengthy sentence
largely because of his considerable rap sheet, which
qualified him as a career offender. (Indeed, without the
career offender enhancement, his criminal history would
have remained at VI, but his offense level would have
dropped to 21.) The district court adopted the PSR’s
calculation of the guidelines range.
The PSR also furnished some details about Brown’s
life, which had been a difficult one. Brown grew up in a
fatherless household, living for most of his youth with
his mother and maternal half-sisters. He began abusing
alcohol and smoking marijuana at age 12 or 13. By the
time he was 14 years old, he had been convicted of theft.
Brown reported that he had been abused as a child by
his mother and bullied by other neighborhood kids.
While his mother acknowledged that she disciplined
Brown, she maintained that the “discipline never hurt
anybody.” She did admit, however, that on one occasion
she “had to beat the shit out of him,” but she asserted
that the beating did not inflict permanent physical harm
on Brown.
4 No. 09-1028
At the sentencing hearing, Brown reiterated the dif-
ficulties he had experienced growing up and he
touched upon the extenuating circumstances associated
with his past crimes. During his allocution, Brown also
emphasized his commitment to change his ways upon
his release from prison. In addition, Brown offered letters
that family members had written attesting to his positive
traits.
After listening to Brown, the district court expressed
deep skepticism about Brown’s sincerity. The court
noted, “I don’t believe that right now you take full respon-
sibility of what you are and what you have done. I don’t
believe you have a commitment that from this day for-
ward, I am going to change my life and lead a different
life.” The judge went on to observe that the rosy image
of Brown set forth in his family members’ letters was
inconsistent with the story sketched out in the PSR. The
court added, “I think that you are trying to run a con
now to say what you feel is necessary to get a reduced
sentence. . . . I think that you still see yourself as a victim
who has the right to do anything you do because you
are the victim. I don’t think you’re a role model.”
When it came time to sentence Brown, however, the
district court inexplicably took a different direction.
Despite its stern lecture, it announced a sentence of 120
months’ imprisonment, the statutory mandatory mini-
mum. Its explanation for this sentence was as follows, in
its entirety:
Based on the fact that you are 40 years old now, the
longest period of imprisonment you spent prior to
No. 09-1028 5
now has been more or less two years in prison on one
or two occasion and given the history and circum-
stances of your upbringing, I feel that a sentence to
the mandatory minimum sentence would be suf-
ficient but not more than what’s necessary to serve
the purpose of sentencing.
Later, in its written statement of reasons for imposing
a below-guidelines sentence, the court repeated that the
sentence imposed was “sufficient to meet all of the
relevant sentencing goals set forth in 18 U.S.C. § 3553(a).”
The government has appealed.
II
In assessing the reasonableness of a sentence, we
engage in a two-step inquiry. See United States v. Jackson,
547 F.3d 786, 792 (7th Cir. 2008). First, we determine
whether the district court made a procedural mistake in
formulating its sentence. Id. To ensure the procedural
reasonableness of a sentence, a district court judge
must “properly calculate[] the guidelines range; analyze[]
the factors set forth in § 3553(a); base[] the sentence
on accurate facts; and explain[] the sentence and the
justifications for an above- or below-guidelines sen-
tence.” United States v. Omole, 523 F.3d 691, 697 (7th
Cir. 2008). Once we are satisfied that the sentence is pro-
cedurally sound, we consider whether it is substantively
reasonable. Jackson, 547 F.3d at 792. Our review of the
latter point is deferential. Gall v. United States, 128 S. Ct.
586, 597 (2007). While an appellate court may treat a
sentence within the guidelines range as presumptively
6 No. 09-1028
reasonable, the converse is not true: there is no “pre-
sumption of unreasonableness for sentences outside the
Guidelines range.” Id. at 595; United States v. Parr, 545
F.3d 491, 505 (7th Cir. 2008) (explaining that appel-
late “review of a nonguideline sentence is extremely
deferential”).
On appeal, the government has focused its efforts on
challenging the procedural reasonableness of Brown’s
sentence. It has no trouble conceding that the district
court properly calculated the guidelines range, but
it vigorously objects to the adequacy of the court’s ex-
planation for deviating so drastically from that range.
Brown counters that the court appropriately relied upon
three valid sentencing considerations to support its
decision to impose the mandatory minimum sentence.
The governing law is well settled. While the district
court must explain its decision to impose a sentence
outside the guidelines range, it need not give an “extraor-
dinary” justification. Gall, 128 S. Ct. at 597 (noting that
the district court must “adequately explain the chosen
sentence to allow for meaningful appellate review and
to promote the perception of fair sentencing”). A district
court judge that imposes an “unusually lenient or
harsh” sentence must give the departure from the guide-
lines “serious consideration” and provide “sufficient
justifications” to support her sentencing determination.
Id. “[A] major departure should be supported by a
more significant justification than a minor one.” Id. Yet
the strength of the justification required for a particular
departure cannot be dictated by a mechanical calcula-
No. 09-1028 7
tion of the percentage of the departure from the ap-
plicable guidelines range. Id.
While the district court invoked several relevant sen-
tencing factors, its brief explanation for departing from
the guidelines fell far short of what Gall requires. In
justifying the 120-month sentence, the district court
began by citing the fact that Brown was 40 years old as
something that supported a lower sentence. Yet the
court never made any attempt to explain how Brown’s
age was pertinent to any legitimate sentencing consider-
ation. See 18 U.S.C. § 3553(a). We find it pointless to
speculate about the judge’s reasons. If the district
court fails to explain itself sufficiently, the rationale for
deferential appellate review is weakened because this
court cannot tell how particular facts influenced the
district court’s assessment of the totality of the circum-
stances. Gall, 128 S. Ct. at 595.
The district court did not make matters any clearer
when it referred to the relatively short length of Brown’s
previous stints in state prison. Perhaps the judge was
willing to accept defense counsel’s argument that al-
though Brown had not been deterred by his previous
sentences, which had never lasted more than two years,
nothing more than a jump to a ten-year sentence was
required to deter Brown from committing another crime.
The government, however, suggests that the court in-
stead may have felt that a lengthy federal sentence
would have created an unwarranted sentencing disparity
in light of Brown’s short state sentences; this, it argues,
would be a misinterpretation of the concept of unwar-
8 No. 09-1028
ranted disparities for purposes of federal sentencing. The
government is correct: the reference in § 3553(a)(6) to
“unwarranted sentence disparities” does not invite a
comparison between the defendant’s earlier sentences
and the present one; it requires a comparison to the
way this offender is treated as compared to similarly
situated persons in other federal courts, when they are
being sentenced for the same crime. We cannot tell
whether the district court had in mind the latter rationale
or the former one.
We are also left without any guidance about how the
court was weighing “the history and circumstances of
[Brown’s] upbringing.” Most importantly, the court never
clarified the severity of Brown’s childhood abuse. Al-
though Brown claimed to have been beaten by his
mother, his testimony at the sentencing hearing was
equivocal at best, and his mother confessed to only one
serious beating. Putting aside these allegations of
abuse, there is relatively little in Brown’s background
that would support a 142-month departure from the
guidelines.
The district court not only failed adequately to explain
its rationale for its sentencing decision; it also offered a
significant number of observations that would have
made more sense as justifications for a lengthier sen-
tence. The court criticized Brown for continually
claiming to be a victim and failing to take responsibility
for what he had done. The court expressed open skep-
ticism about Brown’s chances for rehabilitation, when
it stated that it did not believe that Brown had made a
No. 09-1028 9
commitment to change his life and become a different
person.
The contrast between the tone of the court’s words and
the ultimate sentence imposed is reminiscent of our
decision in Omole, 523 F.3d at 697. In that case, the
district court sentenced the defendant to 12 months of
imprisonment, which was 51 months below the mini-
mum advised by the guidelines. Id. at 694. In justifying
the sentence, the district court cited the defendant’s
young age, his insubstantial criminal record, his success
in school, his upbringing, and his rehabilitative potential.
Id. at 700. Yet during the hearing, the court “severely
chastised” the defendant on a number of grounds. Id. at
698 (explaining that the district court “commented on
the defendant’s extreme arrogance, his contempt for the
court, and his utter lack of feeling for other human be-
ings”). In concluding that the defendant’s sentence
was unreasonable, we dismissed the district court’s
justifications as insufficient and emphasized that the
judge had failed to explain the “irreconcilable pictures”
it painted of the defendant. Id. at 699-700.
We find little in this case to distinguish it from Omole.
In fact, the district court in that case provided a more
elaborate explanation to justify a substantially smaller
deviation from the guidelines. Id. at 694, 700. Thus, we
have no trouble concluding that the district court failed
here to articulate the necessary justification for such a
sizable departure from the guidelines. Gall, 128 S. Ct. at
597. In reaching this decision, we make no comment on
the substantive reasonableness of the sentence imposed,
10 No. 09-1028
which is a matter that we leave open for the court on
remand.
* * *
We V ACATE Brown’s sentence and R EMAND for
resentencing in accordance with this opinion.
6-22-10