NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 1, 2022
Decided March 9, 2022
Before
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-2553
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. No. 1:20-cr-00803
DEANDRE JOHNSON, Ronald A. Guzmán,
Defendant-Appellant. Judge.
ORDER
Deandre Johnson pleaded guilty to unlawfully possessing a gun as a felon, 18
U.S.C. § 922(g)(1), and the district court imposed an above-guidelines sentence of 96
months’ imprisonment. The court emphasized Johnson’s refusal to reform despite his
previous convictions and sentences, his dangerous behavior during and after his arrest,
and the need for general deterrence given rising gun violence in Chicago. On appeal,
Johnson argues that his sentence is substantively unreasonable and unwarranted by the
No. 21-2553 Page 2
record. Because the district court sufficiently justified his sentence based on the
statutory sentencing factors, the judgment is affirmed.
I. BACKGROUND
Johnson pleaded guilty to possessing a firearm as a felon. 18 U.S.C. § 922(g)(1). In
2019, police officers had caught him with a gun while on state-based parole for a felony
conviction. He had been driving his girlfriend home; she asked him to bring a pistol for
protection, and he agreed. When police attempted to stop his car for a traffic violation,
Johnson pulled into an alley and fled on foot with the pistol, dropping the magazine in
an alley and later depositing the pistol in a recycling bin. Johnson’s conviction for
possessing a firearm as a felon referenced two past felony convictions—for aggravated
battery and aggravated assault.
At sentencing, the court first computed the prison term recommended under the
Sentencing Guidelines. The parties debated whether Johnson should receive a 2-level
enhancement for recklessly endangering others during flight. See U.S.S.G. § 3C1.2.
Calling it “really a close call,” the court accepted Johnson’s contention that it did not
apply. This led to an offense level of 21, criminal history category of IV, and a
recommended prison term of 57 to 71 months’ imprisonment.
Next, the court addressed arguments about the sentencing factors under 18
U.S.C. § 3553(a). The government argued that a within-guidelines sentence was
appropriate because Johnson’s criminal history, including juvenile arrests and parole
violations not reflected in his history score, showed a need to deter Johnson from future
crimes and protect the public. Johnson responded that a below-guidelines sentence was
justified because the guidelines range exaggerated the severity of his criminal history.
He urged that his aggravated-battery conviction stemmed from a desire to protect his
brother, his conviction for aggravated assault was based on an accidental car collision,
and his current offense arose out of a wish to protect himself and his girlfriend, not a
plan for violence. He added that if he had offended 10 days later, the 2-point
enhancement for committing the offence while on parole would not have applied.
The district court sentenced Johnson to 96 months’ imprisonment, above the
guidelines range of 57 to 71 months. Discussing the § 3553(a) factors, it first focused on
specific deterrence. It noted that despite his past incarcerations, including for “two
convictions . . . for violent behavior,” and despite his active parole status, Johnson chose
to reoffend, instead of, as the court expected, going “out of his way to avoid any
No. 21-2553 Page 3
criminal conduct.” This history revealed a “repetitive pattern of criminal conduct,” and
a refusal to “change[] an iota.” It concluded that Johnson had “no respect for the law
whatsoever” and that his prior incarcerations had been “totally inadequate to change
his behavior.”
The court next considered the nature of Johnson’s offense and his behavior
during and after his arrest. It found that his conduct was “extremely dangerous.” The
court explained that, although it declined to apply the reckless-endangerment
enhancement, Johnson had created a “greater danger to [police] just by having them
chase” him and that fleeing with a weapon elevated that risk to “an added danger” to
police and the public. Regarding his post-arrest behavior, the court referenced a phone
call that Johnson made from jail. During the call, Johnson urged a friend to shoot a dog
that had bitten her, just as he would. The court said that this advice was “outrageous”
and showed that Johnson did not “[have] a clue as to the seriousness of the things he
has done.”
Finally, the court considered the need for general deterrence against illegal gun
possession in Chicago. It observed that the need to “keep . . . guns out of the hands of
convicted felons[] could not be greater at this point in time and this particular location,”
because it contributes to the high rates of gun violence in Chicago. It concluded that this
concern, combined with Johnson’s “inability to learn from his past experiences, his
pattern of violent behavior, his [lack of] respect for the law, his parole, [and] his prior
sentences” justified the above-guidelines sentence.
II. ANALYSIS
On appeal, Johnson argues that the above-guidelines sentence is substantively
unreasonable. This court reviews the substantive reasonableness of a sentence for abuse
of discretion. See Gall v. United States, 552 U.S. 38, 46 (2007). We will uphold such a
sentence as long as the district court provided adequate reasons for the variance
consistent with the § 3553(a) factors. United States v. Gill, 824 F.3d 653, 665 (7th Cir.
2016). We address each of his arguments in turn.
Johnson contends that the district court abused its discretion by ignoring the
context of his past crimes. In his view, the court focused “on the names given for his
previous crimes” (aggravated battery and assault) rather than his actual behavior,
which he believes was not aggressive. But for three reasons the court adequately
justified its upward variance and reasonably rejected Johnson’s argument that his past
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crimes did not warrant a significant sentence. See United States v. Stephens, 986 F.3d 1004,
1009–10 (7th Cir. 2021).
First, although the district court mentioned the violent nature of his past crimes,
it based the current sentence on the fact that the sentences for Johnson’s past crimes had
not caused him to change even “an iota.” It emphasized that Johnson's commission of
his latest offense while still on parole showed that he had “no respect for the law.” This
behavior confirmed that the previous sentences had been “totally inadequate to change
his behavior.” See § 3553(a)(1), (2)(A). The court thus reasonably concluded that
deterring Johnson from future crimes in a way that he had not been deterred before was
a primary factor in sentencing him above the guidelines range. See § 3553(a)(2)(B).
Second, the district court permissibly relied on Johnson’s dangerous flight from
the police to sentence him above the guidelines range. In commenting on that flight, the
court reasonably emphasized the danger to police and the public he caused, not just by
running away, but doing so with a weapon. Johnson replies that it was unreasonable for
the court to use his flight to justify an above-guidelines sentence after rejecting (in “a
close call”) the reckless-endangerment enhancement for that conduct. But in sentencing
a defendant, the district court may weigh behavior that technically falls outside of the
guideline calculation. See United States v. Moultrie, 975 F.3d 655, 662 (7th Cir. 2020)
(upholding an above-guidelines sentence for a § 922(g)(1) conviction where the court
concluded that defendant’s offense level did not reflect the danger of his conduct or
lack of respect for the legal system).
Third, in imposing an above-guidelines sentence, the district court reasonably
relied on Johnson’s behavior after his arrest, because it bore on his personal
characteristics, see 18 U.S.C. § 3553(a)(1), and was not factored into his offense score. See
Moultrie, 975 F.3d at 662. The court permissibly found that Johnson’s advice during the
post-arrest call that his girlfriend violently kill a dog was “outrageous.” This again
confirmed for the court that Johnson did not “[have] a clue as to the seriousness of the
things he has done.” Id.
Johnson next argues that his 96-month sentence is an “extreme outlier”
compared to similarly situated defendants. He notes that the 35% increase over the top
of his guidelines range is statistically unusual: the median sentence for offenders in his
guidelines range is 57 months, and fewer than 5% receive above-guidelines sentences.
But this court may not apply “a rigid mathematical formula that uses the percentage”
variation from the guidelines range to decide whether a sentence is reasonable. Gall, 552
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U.S. at 47. It may consider “the extent of the deviation, but must give due deference to
the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Id. at 51. Due deference is warranted here because the district court analyzed
several offense-specific factors under § 3553(a) that were not adequately reflected in the
guidelines range and justified the variance: Johnson’s lack of deterrence and reform, his
armed flight from arrest, and his post-arrest advice to a friend to offend violently. See
United States v. Matthews, 701 F.3d 1199, 1205 (7th Cir. 2012) (sentencing differences are
not “a forbidden disparity” if justified by legitimate considerations).
Finally, Johnson objects to the district court’s consideration of the recent rise in
gun violence in Chicago, arguing that this general problem does not justify varying
from the guidelines for him specifically. But we have ruled that judges may consider
“local factors” in evaluating the seriousness of an offense and need for deterrence. See
United States v. Hatch, 909 F.3d 872, 875 (7th Cir. 2018) (affirming an above-guidelines
sentence where the court “situated [the defendant’s] offense against . . . observations
about widespread gun violence in Chicago”). Johnson responds that Hatch is
distinguishable because the defendant’s underlying conduct there—trafficking guns
from Indiana to Chicago—was related to the “local factors” that the district court
considered. But that relationship is as present here as it was in Hatch because the district
court discussed rising gun violence in the context of the Johnson’s underlying offense.
While observing that Johnson was a felon in possession of a gun, the court noted the
need “to keep [] guns out of the hands of convicted felons, [which] could not be greater
at this point in time and this particular location.” The district court thus reasonably
determined that an above-guidelines sentence was necessary to deter a severe problem
of similar wrongdoing. See 18 U.S.C. § 3553(a)(2)(B); Hatch, 909 F.3d at 876.
The judgment of the district court is AFFIRMED.