October 2, 2019
from the United States District Court for the Central
District of Illinois. No. 2:16-cr-20062-JES-EIL-1 - James E.
Bauer, Ripple, and Hamilton, Circuit Judges.
Brandon Shoffner was convicted of unlawful possession of a
firearm, he successfully appealed to this court his sentence
of 84 months' imprisonment, a sentence below the
applicable Sentencing Guidelines range. In an unpublished
order, we vacated that sentence because the district court
had miscalculated the base offense level. We further noted
that the district court had not specified whether its
imposition of a six-level increase for punching the arresting
officer, see U.S.S.G. § 3A1.2(c)(1), was based
on a belief that it was required to find, as a matter of law,
see United States v. Alexander, 712 F.3d 977, 978
(7th Cir. 2013), that the punch created a substantial risk of
serious injury or whether the court had found, as a factual
matter, that the punch created a serious risk of injury. We
directed the district court to clarify whether it understood
that U.S.S.G. § 3A1.2(c)(1) requires an explicit factual
remand, the district court, a different judge presiding,
conducted a sentencing hearing. Even though our earlier
decision had decreased his applicable advisory guidelines
range, Mr. Shoffner received the same sentence. He now
appeals again and submits that the district court erred
procedurally by not explaining why it believed that the
imposed sentence was appropriate and by failing to engage
with his arguments in mitigation. After examination of the
record, we conclude that these arguments have merit. The
district court failed to explain adequately the reason for
the sentence imposed and did not analyze as carefully as it
should have the arguments submitted in mitigation.
Accordingly, we vacate the judgment of the district court and
remand the case for resentencing.
police officer found a loaded handgun in the center console
of Mr. Shoffner's car during a traffic stop, Mr.
Shoffner, who had prior felony convictions,
"panicked" and, in a futile attempt to flee, struck
the officer's nose. Mr. Shoffner later pleaded guilty to
possession of a firearm by a felon under 18 U.S.C. §
922(g)(1). At his initial sentencing, the district court
calculated a base offense level of 24 and then increased it
by 6 offense levels after receiving evidence relating to an
enhancement under U.S.S.G. § 3A1.2(c)(1), for striking a
law enforcement officer (the "striking
enhancement"). It then granted a three-offense-level
reduction for accepting responsibility. See U.S.S.G.
§ 3E1.1. The resulting total offense level was 27,
which, combined with his criminal history, yielded a
guidelines range of 100 to 120 months' imprisonment.
district court imposed a below-guidelines sentence of 84
months' imprisonment. The court explained this sentence
by focusing on the circumstances of Mr. Shoffner's arrest
and his striking the officer. He addressed Mr. Shoffner
directly: "[Y]ou were scared. You were fearful. ... I
can try to understand what it would be like to be stopped, a
person in your situation, knowing that gun was in the car,
and the panic that must have ensued." The court
explained that, under those circumstances, adding
three-and-a-half years for the punch would be unfair.
Instead, it reduced the enhancement by half to arrive at a
sentence of 84 months.
Shoffner appealed, and we vacated the sentence on the
Government's unopposed motion because the district court
had miscalculated the base offense level and because it was
unclear whether the district court understood that imposition
of an enhancement for striking the officer required an
explicit finding of fact that the striking created a serious
risk of injury.
remand, the district court, another judge presiding,
conducted a new sentencing hearing. It recalculated the base
offense level of 20 under U.S.S.G. § 2K2.1(a)(4). It did
not alter the other calculations and, therefore, fixed Mr.
Shoffner's total offense level at 23. His new advisory
guidelines range was 70 to 87 months' imprisonment.
second sentencing, Mr. Shoffner offered two principal
arguments in support of a sentence of 42 months'
imprisonment. First, he argued that he had been rehabilitated
during the time he already had served in prison. He pointed
to at least twenty course certificates that he had earned in
prison and to his refusal to participate in gang activity or
"prison politics," despite extensive childhood
trauma and a criminal history that predisposed him to gang
activity. Second, he submitted that the first
sentencing judge had characterized properly the circumstances
of his arrest and "[t]he punch." He, therefore,
asked for a downward departure parallel to the one granted in
the first sentencing proceeding. He argued that "the
Guidelines add too much time for an action that this
Court has held, took place in a
resentencing hearing, the district court first stated that it
had reviewed Mr. Shoffner's sentencing memorandum, the
revised presentence investigation report, and other
submissions. Mr. Shoffner's attorney added that "to
the extent necessary, ... we would incorporate the transcript
of the previous sentencing hearing." The court stated
that it had not reviewed the transcript, but continued:
"I know you referenced it in your memorandum, but if
there's something else that you want to point out, ...
point it out."  Mr. Shoffner's attorney said that it
was nothing he had not already referenced.
hearing the parties' arguments and Mr. Shoffner's
statement, the court praised him for his efforts while in
prison but ultimately determined not to impose a sentence
below the new guideline range. The court commented that Mr.
Shoffner was "intelligent" and
"passionate" and further expressed that Mr.
Shoffner had "taken advantage" of the prison's
programs, which was a "credit" to
In the district court's view, however, these efforts did
not "change the fact... that an 84-month sentence is
still the appropriate sentence." It warned
that if Mr. Shoffner stopped utilizing the prison's
programming, it "will only result in [his] appearing
back in this courtroom again." Later, the court
reiterated that concern. The court also briefly discussed the
sentence imposed by the judge who presided over the first
sentencing and opined that although that judge "thought
a variance to 84 months was appropriate when the guideline
range was 100 to 125 months," that "does not
necessarily mean there's a corresponding departure
that's required here." When Mr. Shoffner heard
that the court was not inclined to give him a reduced
sentence, he asked, "why?" and called the sentence
a "joke." At that point, the court referred
briefly to the 18 U.S.C. § ...