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Putnam County officer to be resentenced again for excessive use of force

June 20, 2017

A Putnam County law enforcement officer who used excessive force against compliant arrestees must return to district court for a second resentencing after the 7th Circuit Court of Appeals determined the district court, once again, failed to adequately justify its imposition of a below-guidelines sentence.

Terry Smith, a sheriff's deputy with the Putnam County Sheriff’s Department, was charged with violently assaulting two arrestees who were under control and not actively resisting arrest. Smith punched an arrestee and caused his face to bleed and swell in one incident. In the second incident, Smith threw another arrestee to the ground and drove his knee into his back to the point where he caused back and rib injuries.

Smith was convicted of violating 18 U.S.C. Section 242, a conviction that comes with a sentencing guideline range of 33 to 41 months in prison. However, Judge William T. Lawrence of the U.S. District Court for the Southern District of Indiana sentenced Smith to a 14-month term, writing the sentence was “a downward variance based upon the history and characteristics that Mr. Smith presents as well as the nature and circumstances of this offense.”

After an initial appeal to the 7th Circuit Court of Appeals, the court affirmed Smith’s conviction but vacated and remanded the case for resentencing, noting that the judge had offered no explanation for the lighter sentence other than to say Smith’s risk for reoffending would be reduced with anger management training. Smith was released from prison on the same day the 7th Circuit issued its opinion and enrolled in anger management courses and obtained employment before his resentencing hearing.

At the second hearing, Judge Ilana Rovner wrote in a Monday opinion that Smith did not take much ownership of his actions. However, the district court noted that Smith had begun referring to his victims as “victims” in conversations with his probation officer, and, thus determined he had accepted responsibility for his actions.

Smith was then resentenced to 14 months in prison, with two years of supervised released and credit for time already served. The government objected on the grounds of procedural and substantive unreasonableness, and the 7th Circuit again vacated the sentence and remanded the case for resentencing on Monday.

In his resentencing decision, Lawrence cited to sentencing guidelines in section 5K2.1, Smith’s history and characteristics and the nature of the offense as justification for the re-imposition of the 14-month sentence. But Rovner said the court “erred procedurally by failing to adequately explain or justify the significantly below-guidelines sentence that it rendered.”

Specifically, Rovner said section 5K2.1 did not apply to Smith’s case and, thus, presumed the court had meant to refer to section 5K2.10, which allows for a sentence reduction if “‘victim’s wrongful conduct contributed significantly to provoking the offense behavior.’” Here, there was no evidence the victims had provoked Smith’s violent actions, the Rovner said, so use of that section to reduce his sentence is not justified, if that is what the district court had intended.

Further, the record in the case is devoid of any evidence of Smith expressing remorse or accepting responsibility for his actions, the 7th Circuit found, and it is unclear which sentencing guidelines Lawrence used to credit Smith’s “remorse.”  Thus, it was procedural error to reduce his sentence on those grounds.

Finally, the 7th Circuit found there was still no evidence that Smith’s anger management classes would lessen his likelihood of reoffending, nor was there evidence that imposing a harsher sentence would impose excessive harm on his family.

The case is United States of America v. Terry Joe Smith, 16-2035.
 

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