United States v. Brooks

100 F.4th 825

UNITED STATES of America, Plaintiff-Appellee, v. Thomas BROOKS, II, Defendant-Appellant.

No. 22-2764

United States Court of Appeals, Seventh Circuit

Argued June 1, 2023

Decided April 30, 2024

Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:22-CR-50001 — Philip G. Reinhard, Judge.

Theodora A. Anderson, Attorney, Office of the United States Attorney, Rockford, IL, Brian J. Kerwin, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Jonathan Singh Bedi, Attorney, Bedi & Singer, LLP, Chicago, IL, for Defendant-Appellant.

Before Easterbrook, Wood, and Pryor, Circuit Judges.

Pryor, Circuit Judge.

Thomas Brooks, II was charged with and pleaded guilty to possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g). Brooks received an above-Guidelines sentence of 96 months' imprisonment. On appeal, Brooks challenges this sentence. Because the district court's sentence was well within its discretion, we affirm.

I. BACKGROUND

Brooks was leaving an Illinois apartment complex during the early afternoon of November 1, 2021, when he saw police officers waiting outside. He began to run. Brooks had several outstanding warrants, and the officers were there to arrest him. Police yelled for him to stop, but he disregarded their commands and continued running. Brooks reached into his waistband and threw an object into the grass. The foot chase continued to the front of the apartment complex, and Brooks reached into his waistband again. An officer unholstered his firearm, pointed it at Brooks, and ordered him to show his hands. Brooks tossed two more objects he had grabbed from his waistband and kept running. Soon thereafter, Brooks tripped, the police apprehended him, and they took him into custody.

Within a minute, officers retrieved the objects that Brooks had thrown during flight, which included a Glock 26 9mm firearm, loaded with one round in the chamber. The firearm was equipped with a "switch."¹ Law enforcement also recovered an extended magazine with thirty-one rounds of ammunition.

Brooks was indicted for possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g). He pled guilty. Before sentencing, the United States Probation Office prepared a Presentence Investigation Report ("PSR"). The probation officer, using the United States Sentencing Guidelines, calculated an offense level of 19, based on the illegal firearm possession conviction, a two-level enhancement for recklessly creating a substantial risk of death or seriously bodily injury to another person in the course of fleeing from a law enforcement officer, and a three-level reduction for acceptance of responsibility. See U.S.S.G. §§ 2K2.1(a)(4)(B)(i)(I), (i)(II), & (ii)(I); § 3C1.2; § 3E1.1(a), (b). Combined with 14 criminal history points establishing a criminal history category VI, Brooks's offense level yielded an advisory guidelines range of 63 to 78 months in prison.

Brooks argued, in his sentencing memorandum and at sentencing, that the reckless endangerment enhancement should not apply because the government could not demonstrate that any of his actions "on the date of his arrest" created a "substantial risk of serious bodily harm."

At sentencing, to support the two-level enhancement, the government elicited testimony from Detective David Cerasa with the Rockford Police Department, who had participated in the arrest of Brooks on November 1, 2021. Detective Cerasa testified that once Brooks exited the back of the apartment complex, he immediately saw police approaching. In response, Brooks ran in the opposite direction, toward Detective Cerasa, who was surveilling the area from the parking lot of a neighboring apartment complex. After seeing Brooks drop an object to the ground and continue running, Detective Cerasa joined the pursuit. He saw Brooks reaching for his waistband. Suspecting that Brooks could be concealing a firearm, Detective Cerasa unholstered his firearm as he pursued Brooks, giving verbal commands for Brooks to stop running and to get on the ground. Brooks disregarded these commands but was eventually secured and arrested in the street directly in front of the apartment complex. On cross-examination, Detective Cerasa testified that law enforcement was able to recover the firearm Brooks had thrown within 45 seconds to a minute. In addition to Detective Cerasa's testimony, the government introduced body camera footage showing the chase, civilians walking in and out of the apartment complex, and one individual on a porch.

Having considered the evidence, the district judge applied the two-level reckless endangerment enhancement. The court found several relevant facts that supported the enhancement, including (1) Brooks was actively fleeing from law enforcement; (2) the police chase occurred in the middle of the day through a public residential neighborhood with officers drawing their weapons; (3) Brooks threw a loaded firearm—made fully automatic by a switch—onto the grass near the apartment complex sidewalk leading to an entry door of the building; (4) the deadly weapon that Brooks tossed could have discharged when it hit the ground or been recovered by a child or adult in the area; (5) Brooks threw a loaded firearm and an extended magazine in an area were persons are normally coming and going from the complex. The district court found sufficient evidence that Brooks's actions supported the two-level enhancement.

Apart from challenging the reckless endangerment enhancement, Brooks also argued that his criminal history category overrepresented his criminal record. He maintained that when properly reviewed, one would notice that a majority of Brooks's criminal history points derived from his juvenile record, diminished culpability, and immaturity. For these reasons, Brooks argued that the two-level enhancement should not apply.

The district court disagreed. The district court concluded that Brooks's criminal history demonstrated a "steady progression" of the same criminal behavior all occurring relatively "close in time," negating Brooks's argument that his criminal history category of VI was overrepresented. Given Brooks's offense level and criminal history category, the court determined that the advisory guidelines range was 63 to 78 months.

After calculating the appropriate guidelines range, the court heard argument from the parties regarding the appropriate sentence. The government requested a sentence within the guidelines, and Brooks argued for a below-Guidelines sentence of 34 months pursuant to Guideline § 4A1.3(b)(1).

Considering the parties' arguments, the PSR, Brooks's allocution, and the written submissions, the court turned to the § 3553(a) factors to make its sentencing determination. In regard to the nature and seriousness of the offense conduct, the district court explained that Brooks had been convicted in this case of possessing a dangerous firearm. Additionally, the court found it troubling that Brooks's firearm had been converted to a "fully automatic" handgun increasing the weapon's "killing potential." The district court also took issue with Brooks's decision to possess an extended magazine with 31 rounds of ammunition, which the court viewed as a "propensity for violence." Thus, the court found Brooks's offense conduct of fleeing and discarding the firearm to be both serious and a substantial risk to the public. The district court also concluded that Brooks's possession of a loaded "fully automatic" weapon and the extended magazine warranted a higher sentence.

The district court found Brooks's mitigation arguments involving his personal history and characteristics of drug addiction, serious mental health history, and exposure to gun violence at a young age failed "to justify" Brooks carrying a dangerous automatic weapon in his neighborhood. While the court acknowledged that Brooks had been raised in a violent neighborhood and exposed to gun violence at an early age, Brooks had been reared in a loving family. Relying on communications from Brooks's family, the court noted that the defendant had been guided by both his mother and stepfather in the home, but still chose to join a street gang.

The court found Brooks's mitigating factors, however, to be outweighed significantly by numerous aggravating factors. It noted that, although Brooks was only twenty years old, he had already developed an extensive criminal record that started at the age of 14. The court observed that Brooks's "persistent criminal felony record" had amassed a substantial criminal history, including an adult criminal conviction for aggravated unlawful use of a weapon. The court found Brooks to be a repeat offender. More troubling, the court observed that Brooks had refused the reformative programming and counseling offered to him over the years through the juvenile justice system. The court also noted that Brooks's recent illegal use of a weapon conviction and sentence had failed to deter Brooks from engaging in further crime, given that he was on probation for that charge at the time of the instant offense. Another aggravating factor for the court was that Brooks was in possession of an additional clip with 31 rounds of ammunition on the day of his arrest. The court noted that, although Brooks was on pretrial release for various pending state charges, nothing deterred him from possessing a fully automatic weapon.

The court also discussed Brooks's "disrespect for the law," which was reflected in his failure to appear for court proceedings, his criminal behavior while on bond for various state offenses, and his disciplinary record in pretrial detention. The district court believed Brooks's steady delinquent criminal behavior and his conduct while detained all demonstrated that Brooks posed a "risk to the public" and that his "rehabilitative potential" was questionable.

After evaluating the sentencing factors found at 18 U.S.C. § 3553...