District court’s explanations save enhanced sentence from remand

Although the 7th Circuit Court of Appeals was “troubled” by the Northern Indiana District Court’s approach to enhancing the sentence of a criminal defendant, the appellate panel was reassured by the lower court’s explanation and ruled any error was harmless.

U.S. District Court for the Northern District of Indiana Judge Damon Leichty sentenced Martel Settles to 87 months in federal prison for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Settles had pleaded guilty without a plea agreement. The presentence investigation report prepared by the U.S. Probation Office calculated the advisory sentence to range between 33 and 41 months of incarceration.

First, the district court adopted the recommended sentencing range then traced Settles’s case through the 18 U.S.C. § 3553(a) factors. According to the court, Settles’ crime was more serious than a typical felony weapon possession because the defendant “was arrested after arriving at his ex-girlfriend’s home, where a child was sleeping, in violation of a no contact order, in the middle of the night, with a loaded handgun, and with a live round in the chamber.”

The district court proceeded to enhance the sentence using a mathematical or metrical check-and-balance analysis. In particular, the adjusted the time of incarceration upward for the danger Settles created when he fled from police, his violations of other protective orders and the risk of recidivism.

Also, in assessing the seriousness of the offense, the district court took “some guidance” from U.S.S.G. § 5K2.6 of the guidelines. This is a policy statement which describes how a sentence may be increased above the authorized guideline range “[i[f a weapon or dangerous instrumentality was used or possessed in the commission of the offense.”

The court determined the adjustments taken together supported the equivalent of a five-level increase to Settles’s offense level. They also supported a move from criminal history category III to IV. Turning to the guideline’s Sentencing Table, Settles’s new offense level of 23 and his criminal history of IV called for a range of 70 to 87 months.

Imposing the 87-month sentence, the district court was above the advisory range and under the 120 months the government had requested.

Settles appealed. He argued, in part, district court’s reliance on section 5K2.6 policy statement was misplaced because that statement does not apply to section 922(g) offenses.

The 7th Circuit noted the district court’s approach could have provided the grounds for remanding the case but the appellate panel decided to affirm in United States of America v. Martel Settles, 21-2780.

In reviewing the methodology used for sentencing Settles, the 7th Circuit stated, “… we are troubled by certain aspects of the district court’s approach.”

The appellate panel held the district court took a flawed approach by stacking the enhancements to arrive at the sentence rather than counting the offense levels after a sentence has been reached to confirm its reasonableness. With Settles, the lower court does not mention the 87-month sentence until the very end of its “mathematical check and balance” method which indicates the mathematical process was not a retrospective check.

However, the district court went on to provide additional information that gave more insight into the methodology. The lower court made an oral statement and filed a post-sentencing memorandum each describing why 87 months was “right and reasonable” in light of “all the factors under 3553(a).”

“Those explanations reassure us that the court reviewed the case and ultimate sentence as an integrated whole, rather than deriving the sentence from an incorrect guidelines range,” Senior Judge Diane Wood wrote for the court.” Our concerns are further allayed by the fact that the court tailored the guidance given in U.S.S.G. §§ 3C1.2 and 5K2.6 to the particular facts. It recognized that Settles’s flight did not warrant a two-level enhancement, as is suggested by section 3C1.2, but thought that it still merited the equivalent of one level. The court was thus not mechanically following enhancements in a paint-by-numbers manner.”

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