Sentencing Guidelines

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jesse J. Ballard

Case No.: 19-2103

Officials: FLAUM, MANION, and KANNE, Circuit Judges.

Focus: Sentencing Guidelines

Jesse Ballard has an extraordinarily long history of criminal conduct, which the sentencing judge described as “probably one of the worst criminal histories [he’d] seen in 30 years” of experience. From 1985 until 2017, Ballard accrued over 30 convictions for crimes such as attempted residential burglary, kidnapping, battery, aggravated assault (amended from rape), possession of a firearm as a felon, and multiple convictions for driving with a suspended or revoked driver’s license. Ballard also accrued a multitude of parole violations and committed several infractions while in prison.

Ballard was arrested once again in December 2017 after he possessed a gun purchased by his girlfriend. Ballard pleaded guilty on May 9, 2018, to possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). This was his first conviction in federal court. The court initially imposed an enhancement on Ballard as an armed career criminal under 18 U.S.C. § 924(e), resulting in a Guidelines range of 180 to 210 months’ imprisonment. At sentencing, the district court considered Ballard’s extensive criminal history, including old offenses for which the Guidelines did not assess criminal history points. The court noted this extensive history showed a pattern of lawlessness, a disrespect for the law, an inability to lead a law abiding life, and a failure of prior sentences to deter Ballard from criminal behavior. Citing the § 3553 factors of the defendant’s history and characteristics, promoting respect for the law, deterrence, and the need to protect the public from Ballard’s future crimes, the court imposed a sentence of 232 months, a 10 percent upward departure from the high end of his Guidelines range.

We conclude that the district court committed procedural error by not providing an adequate explanation for the major upward departure from the Guidelines range on resentencing. First, the district court failed to provide a justification that explains the extreme difference between the upward departure of the second sentence versus that of the original sentence. To justify a sentence that was 67 months above the Guidelines range (a 160 percent upward departure), the court referred to the history and characteristics of the defendant and the goals of promoting respect for the law, deterrence, and protecting the public from future crimes. These are appropriate factors to consider under § 3553. However, these were the same factors cited and discussed at the original sentencing, resulting in a sentence only 22 months above the original Guidelines range (a 10 percent upward departure). The court provided no explanation for why consideration of the same factors warranted a much greater departure on resentencing. The district court’s explanation of its departure from the Guidelines upon resentencing does not “articulate[] and justif[y] the magnitude of the variance” where the explanation is essentially identical to the explanation provided for a much less extreme departure in the original sentence.

Vacated and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.