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United States v. Shoffner

United States Court of Appeals, Seventh Circuit

November 8, 2019

United States of America, Plaintiff-Appellee,
Brandon Shoffner, Defendant-Appellant.

          Argued October 2, 2019

          Appeal from the United States District Court for the Central District of Illinois. No. 2:16-cr-20062-JES-EIL-1 - James E. Shadid, Judge.

          Before Bauer, Ripple, and Hamilton, Circuit Judges.

          PER CURIAM.

         After 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 In an unpublished order, we vacated that sentence because the district court had miscalculated the base offense level.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 finding.

         On 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.



         When a 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"[1] 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.

         The 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."[2] 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.

         Mr. 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.

         On 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.

         At this 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.[3] Second, he submitted that the first sentencing judge had characterized properly the circumstances of his arrest and "[t]he punch."[4] 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 'panic.'"[5]

         At the 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."[6] 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." [7] Mr. Shoffner's attorney said that it was nothing he had not already referenced.[8]

         After 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 him.[9] In the district court's view, however, these efforts did not "change the fact... that an 84-month sentence is still the appropriate sentence."[10] It warned that if Mr. Shoffner stopped utilizing the prison's programming, it "will only result in [his] appearing back in this courtroom again."[11] 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."[12] 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."[13] At that point, the court referred briefly to the 18 U.S.C. ยง ...

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