United States v. Baker

56 F.4th 1128

UNITED STATES of America, Plaintiff-Appellee,

v.Donta BAKER, Defendant-Appellant.

No. 21-3141

United States Court of Appeals, Seventh Circuit.

Argued September 28, 2022

Decided January 6, 2023

Saurish Appleby-Bhattacharjee, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before Easterbrook, Hamilton, and Brennan, Circuit Judges.

Hamilton, Circuit Judge.

Appellant Donta Baker was sentenced to 72 months and one day in prison after pleading guilty to being a felon in possession of a firearm. In trying to avoid arrest, Baker ran from police officers, took a loaded firearm out of his waistband, and threw it over a fence into a residential backyard. Based on this conduct, the district court added two offense levels under Sentencing Guideline § 3C1.2 for Baker's having "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." On appeal, Baker challenges that guideline finding. We do not reach that issue. The record makes clear that the district judge would have imposed the same sentence even if the two contested guideline levels had not been added. Accordingly, even if there had been a guideline error, it would have been harmless. The actual sentence was also reasonable under the circumstances, so we affirm.

I. Factual and Procedural Background

Donta Baker pled guilty to being a felon in unlawful possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He faced a statutory maximum sentence of ten years.¹ Under Sentencing Guideline § 2K2.1(a)(6)(A), Baker's base offense level was 14. Two levels were added because the gun was stolen. § 2K2.1(b)(4)(A). Another two levels were added for obstruction of justice because Baker had removed his monitoring device and fled from home arrest before sentencing. § 3C1.1. Due to this flight, Baker also did not receive any reduction in his offense level for acceptance of responsibility. The defense agreed that the total offense level was at least 18.

The issue in this appeal is the additional two-level enhancement under § 3C1.2, which applies when a defendant "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." Baker fled from police and—while running—removed a loaded gun from his waistband and threw it over a fence into a residential backyard. Baker argued in the district court that these facts did not show that he had created a substantial risk of injury. The district court ruled that the enhancement did apply, bringing Baker's final offense level to 20.²

Baker had 13 criminal history points, placing him in criminal history category VI. The guideline range for a total offense level of 20 (including the contested two-level enhancement) and criminal history VI was 70 to 87 months. Without the contested enhancement, the total offense level would have been 18 and the guideline range would have been 57 to 71 months. The judge imposed a final sentence of 72 months and one day. In explaining the sentence, the judge focused primarily on Baker's eleven prior convictions, including three priors for being a felon in possession of a firearm or ammunition. The judge said, "I noted that you got 72 months before when you [committed this offense] a third time. You need to get at least 72 months this time given your history. I need to deter you from committing this crime again. I need to deter others not to do it again. So that's how I reach 72 months and one day."

II. Analysis

To determine a federal sentence, the district court must first calculate the correct advisory sentencing range under the Sentencing Guidelines. See 18 U.S.C. § 3553(a)(4) ; Rosales-Mireles v. United States , ––– U.S. ––––, 138 S. Ct. 1897, 1904, 201 L.Ed.2d 376 (2018) ; Gall v. United States , 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The court must also weigh the factors listed in 18 U.S.C. § 3553(a) in choosing a sentence and may apply those factors to impose a sentence outside the advisory guideline range. Gall , 552 U.S. at 49–50, 128 S.Ct. 586.

In many cases, the record will show that the guideline range played a central role in sentencing. For instance, a judge might explain that the § 3553(a) factors support leniency and then impose a sentence at the bottom of the guideline range. If that range was miscalculated and the correct range should have been lower, it is possible that the judge would have sentenced at the bottom of that proper, lower range. When it is clear from the record that the guideline range played such a central role in shaping a sentence, a guideline calculation error will ordinarily lead to a remand for resentencing.

In other cases, and this is one, the record shows that the guideline range did not play such a central role and that the sentence imposed would not have differed even if the guideline range had been lower or higher. We may affirm a sentence regardless of a guideline error when the error was harmless and the sentence imposed would have been substantively reasonable even under the guideline level argued for on appeal. E.g., United States v. Abbas , 560 F.3d 660, 667 (7th Cir. 2009). Abbas explained that harmlessness and reasonableness are two distinct questions. We consider them in turn.

A. Harmlessness

A guideline error can be harmless if we can tell from the record that on remand, considering the different and arguably proper guideline level, the judge would impose the same sentence. United States v. Asbury , 27 F.4th 576, 582 (7th Cir. 2022), quoting United States v. Jett , 982 F.3d 1072, 1078 (7th Cir. 2020) ; see also United States v. Glosser , 623 F.3d 413, 419–20 (7th Cir. 2010) (collecting Seventh Circuit cases declining to find guideline errors harmless). The judge made that point unmistakably clear during Baker's sentencing hearing.

We have been reluctant to treat guideline errors as harmless when the judge seems to have offered only "a conclusory comment tossed in for good measure." Abbas , 560 F.3d at 667 ; see also, e.g., United States v. Bravo , 26 F.4th 387, 397, 401 (7th Cir. 2022) (remanding for resentencing even though judge said he would have imposed same sentence without two additional criminal history points). We must be able to determine from the judge's explanation why the disputed issue would not have mattered. At the same time, we have often said that a sentencing judge "need not belabor the obvious." E.g., United States v. Jordan , 991 F.3d 818, 822 (7th Cir. 2021), quoting United States v. Sainz , 827 F.3d 602, 608 (7th Cir. 2016) ; United States v. Castaldi , 743 F.3d 589, 591 (7th Cir. 2012).

The judge's statement here was anything but conclusory. Immediately after announcing his sentence, the judge noted Baker's challenge to the two-level enhancement for reckless endangerment. He said: "I would have imposed a sentence of 72 months and one day even if I found that the reckless endangerment enhancement did not apply. It would have made no difference to my sentence." The judge then explained his thinking. Baker had previously been sentenced to 72 months for the same offense of being a felon in possession of a firearm or ammunition, yet he had committed the offense again. The judge rooted his sentencing decision in deterrence.

The judge closely examined Baker's criminal history and was understandably "concerned" that Baker had eleven prior convictions. He considered that Baker had "committed a lot of serious offenses for a long time ... [Baker had] engaged in criminal conduct on and off ... for 25 years, a quarter century." The judge focused on the "especially troubling" fact that Baker had three prior convictions for the offense at issue: being a felon in possession. Baker was sentenced to 72 months for his third conviction "and apparently it was not a sufficient deterrent because he did it a fourth time." The judge told Baker that "you need to get at least 72 months this time given your history." The judge explained to Baker that "I need to deter you from committing this crime again. I need to deter others not to do it again. So that's how I reach 72 months and one day." We can understand easily from these comments why the contested guideline issue did not affect the final sentence.

B. Substantive Reasonableness

We review the substantive reasonableness of a sentence for abuse of discretion. Gall , 552 U.S. at 51, 128 S.Ct. 586. A sentence is substantively reasonable if the judge reached it by giving "meaningful consideration to the factors enumerated in 18 U.S.C. § 3553(a), including the advisory Sentencing Guidelines" and applying those factors to the "individual circumstances of the case." United States v. Major , 33 F.4th 370, 379 (7th Cir. 2022), quoting United States v. Patel , 921 F.3d 663, 672 (7th Cir. 2019). We typically begin our analysis of substantive reasonableness by determining the correct guideline range. See, e.g., Abbas , 560 F.3d at 667 (phrasing the issue of substantive reasonableness based on the "appropriate guideline range"). Here, we will assume without deciding that the correct guideline total offense level was not 20 but 18, as advocated by Baker, which carries a guideline range of 57 to 71 months in criminal history category VI. Baker was sentenced to 72 months and one day.

A district court must explain how it reached its sentence considering the factors set forth in 18 U.S.C. § 3553(a). This explanation must be sufficient "to allow for meaningful appellate review." Gall , 552 U.S. at 50, 128 S.Ct. 586. When the sentence falls outside the advisory guideline range, the explanation must be compelling enough to justify the variance, and larger variances call for more thorough justifications than smaller...