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United States v. Ferguson

United States Court of Appeals, Seventh Circuit

August 3, 2016

United States of America, Plaintiff-Appellee,
Grover Coleman Ferguson, Defendant-Appellant.

          Argued May 26, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 15-Cr-81 - Rudolph T. Randa, Judge.

          Before Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Defendant Grover Ferguson appeals his sentence. He was seventeen years old when he shot a woman three times during a carjacking, permanently disabling her. The high end of the guideline range for his crime was 217 months in prison. The government recommended a 240-month above-guideline sentence based on the severity of Ferguson's violent actions. The district court, however, imposed a sentence of 600 months (50 years) in prison, or more than 31 years longer than the top of the guideline range.

         We vacate the sentence and remand for re-sentencing. The Sentencing Guidelines are, of course, advisory. A judge is free to exercise his or her judgment to depart from them. Such a dramatic variance from a guideline range, however, requires a substantial explanation. Gall v. United States, 552 U.S. 38, 50 (2007). The explanation given here does not support a sentence that is more than 31 years and more than two and a half times longer than the top of the guideline range.

         I. Ferguson's Crime and Sentence

         On April 21, 2015, Ferguson was seventeen years old. He was drunk and high. He wanted a car. He approached a woman on the street as she was getting into her car. He opened the passenger door, pointed a gun at the woman, and demanded her keys. She hesitated, thinking Ferguson was joking.

         Ferguson demanded the keys again, and he then shot the woman three times at point-blank range, including one shot to her face. Ferguson walked over to the woman, got her keys, and started the car. The woman somehow managed to drag herself to the curb to avoid being run over as Ferguson drove off. Police arrested Ferguson the next day driving the stolen car, but only after a high-speed chase.

         Ferguson's crimes had a devastating effect on the woman he shot. She lost sight in one eye and has nerve damage to her ear and face. She suffers pain daily. She cannot drive anymore and depends on others for transportation. She has not been able to work since the attack. Ferguson's attack left her with psychological injuries. She has nightmares about the robbery, has become scared of her surroundings, and panics when she sees young men outside her home.

         Ferguson pled guilty to vehicular robbery by force, 18 U.S.C. § 2119(2), and discharge of a firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). The statutory range for the carjacking is up to 25 years (300 months) in prison. The statutory range for discharging the firearm is a mandatory minimum ten years (120 months) up to life, which must be consecutive to the sentence for the carjacking.

         There is no dispute about the Sentencing Guideline calculation here. The guideline range for the carjacking was 78 to 97 months, and the guideline sentence for the firearm count was 120 months, consecutive to the carjacking sentence. The total guideline range was thus 198 to 217 months (sixteen and a half years to a little over eighteen years).

         At the sentencing hearing, the government requested an above-guideline 20-year sentence due to the senselessly violent nature of Ferguson's crime. The victim exercised her right to be heard under the Crime Victims' Rights Act, 18 U.S.C. § 3771, and urged the court to impose the maximum possible sentence. The defense proposed a fifteen-year sentence. The district court sentenced Ferguson to 50 years: eight years for the carjacking and 42 years for firing the gun.

         II. The Delayed Supervised Release Conditions

         Before addressing Ferguson's arguments, we first address some procedural confusion in the case. The district court sentenced Ferguson orally on December 3, 2015 and entered its written judgment of conviction on December 9, 2015. The sentence at that time was not complete, though, because the judge had not yet announced the conditions of supervised release that he intended to impose, nor had he decided the amount of restitution. On December 11, 2015, Ferguson filed his notice of appeal. More than three months later, on March 22, 2016, the district court issued an amended judgment ...

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