November 7, 2016
from the United States District Court for the Western
District of Wisconsin. No. 15-cr-124 - James D. Peterson,
Easterbrook and Williams, Circuit Judges, and Feinerman,
District Judge. [*]
Feinerman, District Judge.
Kluball was sentenced to 120 months' imprisonment for
transporting a 17-year-old girl across state lines with the
intent that she engage in prostitution, in violation of 18
U.S.C. § 2421. The only issue on appeal is whether the
district court violated Kluball's due process right to be
sentenced based on accurate information by finding that his
mental health history suggested that further treatment would
be unlikely to have a "lasting impact" on his
ability to refrain from further criminal conduct. There was
no due process violation, and so the district court's
judgment is affirmed.
pleading guilty, Kluball admitted that he drove to Tennessee
to pick up a 17-year-old girl he had met on Facebook, brought
her to his apartment in Wisconsin, advertised her online for
sex acts, and escorted her to several prostitution
engagements in the Madison area. The probation office
calculated an advisory guidelines range of 121 to 151
months' imprisonment, but because the statutory maximum
under § 2421 is ten years, Kluball's advisory
guidelines term became 120 months. See U.S.S.G.
§5Gl.l(a) ("Where the statutorily authorized
maximum sentence is less than the minimum of the applicable
guideline range, the statutorily authorized maximum sentence
shall be the guideline sentence.").
presentence investigation report provided the only factual
information before the district court regarding Kluball's
mental health history. The report chronicled Kluball's
struggle with mental illness and associated behavioral
problems since early childhood. His diagnoses included
oppositional defiant disorder, attention deficit
hyperactivity disorder, bipolar disorder, posttraumatic
stress disorder, and depression. Kluball received counseling
and was hospitalized several times, and he was treated with
an array of drugs, including Adderall, Depakote, Eskalith,
Fluoxetine, lithium, Prozac, Remeron, Ritalin, Seroquel,
Strattera, Valium, Zoloft, Zydis, and Zyprexa. None of the
treatments succeeded, at least for very long. Kluball was
kicked out of twenty-one daycare facilities as a child,
expelled from high school, discharged from the military with
an other-than-honorable discharge due to misconduct, and
fired from multiple jobs due to various transgressions.
Kluball threatened to kill his parents with a baseball bat as
a child, threatened to stab his foster parents and to attack
his foster brother with a meat cleaver as a teenager, and
threatened others with a concealed weapon as an adult.
did not object to the presentence report's description of
his mental health history or offer evidence to undermine or
augment it. The district court adopted the report's
findings at sentencing, as it was entitled to do. See
United States v. Somalia, 241 F.3d 904, 907 (7th
Cir. 2001). The court imposed the guidelines term of 120
months. In so doing, the court remarked:
I think the bottom line here is that when I look at the
records of Mr. Kluball's troubles, there is no diagnosis
of a mental illness here that really relieves Mr. Kluball of
responsibility. He is a person who is upsettable, is
sometimes violent. He's defiant. And all of these things
are difficulties and maybe things that are amenable to some
kind of treatment, but I don't see any diagnosis here
that really makes me feel like I should consider Mr.
Kluball's culpability for this very calculating kind of
criminal act that he committed here to be alleviated.
He's responsible for what he did despite the fact that he
has a history of problems that may involve mental health
The bottom line here is that Mr. Kluball has proven himself
to be very dangerous. Even after these things came to light,
he's posting pictures on Facebook showing his guns.
He's manifestly at risk of self-harm. But if we were to
look at this pattern here and find Mr. Kluball's
fascination with guns and his defiant behavior, I think
you'd have to conclude, as I do, that he really is a
dangerous person and that the protection of the public is a
factor that has to drive the sentence in a significant way.
... [T]he bottom line here is that not only is he dangerous,
I think his history suggests that there is no structure or
treatment that realistically suggests that it's going to
have any ... lasting impact on Mr. Kluball's ability to
conform himself to, let alone lawful behavior, just safe
behavior. I think that-I'm left only with the conclusion
that there is only incarceration which provides the kind of
level of structure that Mr. Kluball can succeed in and that
keeps the public safe.
Kluball acknowledges, a sentencing judge may consider whether
mental health treatment will succeed in reducing the
defendant's dangerousness or propensity to commit further
crimes. The governing statute, in fact, requires the
judge to consider "the need for the sentence imposed ...
to protect the public from further crimes of the
defendant." 18 U.S.C. § 3553(a)(2)(C). As we have
explained, "incapacitation (physically preventing the
defendant from committing crimes on 'the outside, '
by imprisoning him) is an authorized factor for a judge to
consider in determining the length of a prison
sentence." United States v. Kubeczko, 660 F.3d
260, 262 (7th Cir. 2011) (citing § 3553(a)(2)(C)). This
is so even if the defendant's difficulties refraining
from criminal conduct result from mental illness. See
ibid, (rejecting the proposition that "there is
any impropriety in lengthening a sentence because of concern-
whether based on mental illness, addiction, or anything else
that may weaken a person's inhibitions against committing
crimes-that the defendant is likely to commit further crimes
upon release"); United States v. Miranda, 505
F.3d 785, 793 (7th Cir. 2007) ("In this case, there is
evidence that [the defendant] was being treated for mental
illness at the time he committed his crimes, and so the court
may determine that the only way to truly incapacitate [the
defendant] is a heavy prison sentence."). True, a
sentencing judge may find a defendant's mental illness to
be a mitigating rather than an aggravating factor, or both
mitigating and aggravating. See United States v.
Annoreno, 713 F.3d 352, 358 (7th Cir. 2013);
Miranda, 505 F.3d at 792. But the degree to which
mental illness is deemed mitigating or aggravating, and the
weight accorded that factor, lies within the sentencing
judge's broad discretion. See United States v.
Warner, 792 F.3d 847, 855 (7th Cir. 2015)
("Ultimately, it falls on the district court to weigh
and balance the various factors and to make an individualized
assessment based on the facts presented.") (internal
quotation marks omitted); United States v. Beier,
490 F.3d 572, 574 (7th Cir. 2007) ("The statute does not
attach weights to these factors, thus leaving the sentencing
judge with enormous latitude ... .").
Kluball does not dispute these principles, he contends that
the record at sentencing did not permit the district court to
conclude that "his history suggests that there is no
structure or treatment that realistically suggests that
it's going to have any ... lasting impact on [his]
ability to conform himself to ... lawful behavior ... ."
This flaw in the district court's reasoning, Kluball
says, violated his due process rights.
convicted defendant has a due process right to be sentenced
on the basis of accurate information." United States
v. Melendez,819 F.3d 1006, 1012 (7th Cir. 2016).
Additionally, "due process requires that sentencing
determinations be based on reliable evidence, not speculation
or unfounded allegations." United States v.
Bradley,628 F.3d 394, 400 (7th Cir. 2010); see also
United States v. England,555 F.3d 616, 622 (7th
Cir. 2009). To show a violation of this right, "a
defendant must demonstrate that the information before the
court was inaccurate ...