December 8, 2017
from the United States District Court for the Southern
District of Illinois Division. No.16 CR 30049 - Staci M.
Kanne and ROVNER, Circuit Judges, and Durkin, District Judge.
district court sentenced Skylar D. Hen-shaw, a career
offender, to five years' probation-a sentence 151 months
lower than the bottom end of his guidelines range and 57
months lower than the sentence recommended by Henshaw's
counsel. Because we find this departure substantively
unreasonable, we vacate Henshaw's sentence and remand for
2015, at the direction of the Drug Enforcement Agency
("DEA"), a confidential source arranged for the
purchase of a kilogram of cocaine by Henshaw and his friend
Corey Pryor. When the DEA arrested Henshaw during the
purchase on July 14, 2015, he had $3, 174 in cash on his
person. Agents subsequently entered Henshaw's residence
pursuant to a search warrant and found $55, 090 in cash, 750
grams of marijuana, and five ecstasy pills.
statements at the time of his arrest and the following day,
Henshaw acknowledged that he was a marijuana dealer, that
Pryor was Henshaw's recent source for marijuana, and that
Henshaw owed Pryor $30, 000 for 30 pounds of marijuana. But
Henshaw represented that he attended the cocaine purchase
merely to test the cocaine for Pryor. Because Pryor died
before the return of Henshaw's indictment, the government
could not obtain testimony from him corroborating his prior
statement to the confidential source regarding the extent of
Henshaw's involvement in the cocaine transaction.
time of his arrest, Henshaw was subject to a four-year felony
conditional discharge sentence imposed in Jackson County,
Illinois in August 2012 for selling two pounds of marijuana.
He also was subject to a second four-year felony conditional
discharge sentence imposed in Williamson County, Illinois in
August 2012 for possessing with intent to deliver over 500
grams of marijuana.
pleaded guilty to aiding and abetting Pryor in attempted
possession with intent to distribute cocaine in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), & 846
(Count 1), and possession with intent to distribute marijuana
in violation of 21 U.S.C. §§ 841(a)(1) &
841(b)(1)(C) (Count 2). Henshaw did not contest the
determination in the presentence investigation report
("PSR") that he qualified as a "career
offender" under U.S.S.G. § 4B1.1 et seq.
based on his two prior felony controlled substance offenses.
had other prior convictions as well, including a 2006 felony
conviction for possession of cannabis and a 2004 misdemeanor
conviction for assault. For the misdemeanor assault
conviction, Henshaw was sentenced to two years' probation
and eight days in jail. His probation was revoked twice in
that case-once in March 2005 for testing positive for
marijuana and cocaine, and once in July 2006 for unlawfully
possessing 231 grams of marijuana.
on Henshaw's criminal history, the PSR calculated an
advisory sentencing range of 151 to 188 months. Henshaw's
sentencing memorandum cited policy disagreements with the
severity of career-offender enhancements as applied to
offenders with prior drug trafficking (as opposed to violent)
offenses. The memorandum explained that without the
career-offender designation, Henshaw's guidelines range
would be 57 to 71 months. The memorandum also represented
that Henshaw had minimal involvement in the underlying
cocaine transaction. Lastly, the memorandum described
Henshaw's personal history and characteristics, including
his family history of drug abuse, physical abuse, and verbal
abuse. It stated that Henshaw was a loving father to three
children and had remained substance free since his arrest.
Henshaw's sentencing memorandum requested a sentence of
57 months. The government did not file a sentencing
February 2017 sentencing, the district court adopted a
revised version of the PSR without change, including the
PSR's finding that Henshaw was a career offender with a
guidelines range of 151 to 188 months. The district court
then said it would entertain arguments under 18 U.S.C. §
government recommended a sentence of the low end of the
guidelines range (151 months). The entirety of the
government's argument in aggravation was as follows:
Your Honor, I have [no] information that would take [Henshaw]
outside of the guidelines according to the 3553(a) factors
and, therefore, I would recommend, because this defendant has
been relatively cooperative and he's been released on
bond and has been fairly compliant as far as I know, the
Government would recommend the low end of the guideline range
of 151 months, three years supervised ...