# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 19, 2014

Decided December 24, 2014

Before

DIANE P. WOOD, Chief Judge

MICHAEL S. KANNE, Circuit Judge

J OHN DANIEL TINDER, Circuit Judge

No. 14

‐ 2108

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

MITCHELL TIMM,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 13

‐ CR

‐ 236

‐ JPS

J .P. Stadtmueller,

J udge

.

O R D E R

Mitchell Timm received a below

‐ guidelines sentence for armed bank robbery

and brandishing a firearm during that offense. Timm appeals, arguing that the district

court did not consider his primary contention at sentencing that the criminal

‐ history

score was excessive because of his mental

‐ health issues and age at the time he

committed prior crimes. We conclude that Timm did not waive his complaint but that

the court sufficiently considered his argument, and affirm the sentence.

In November 2012 Timm and his stepbrother robbed a bank in Wauwatosa,

Wisconsin; both men were armed. They fled the bank in a stolen car, which they then

set on fire. Timm was charged with armed bank robbery, see 18 U.S.C. § 2113(a), NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 14

‐ 2108 Page 2

brandishing a firearm in furtherance of that crime, see id. § 924(c)(1)(A)(ii), and

possessing a stolen vehicle, see id. § 2315. He pleaded guilty to the first two charges, and

the government agreed to dismiss the third.

A probation officer calculated a guidelines sentencing range of 84 to 105 months

for the armed robbery, based on an offense level of 22 and criminal

‐ history category VI.

Timm faced a statutory

‐ minimum consecutive sentence of 84 months under

§ 924(c)(1)(A)(ii) because he brandished his gun during the robbery.

In his report the probation officer detailed Timm’s “disturbing childhood” and

mental

‐ health history. The PSR revealed that when Timm was 3

‐ years

‐ old, his

stepmother physically abused him. That was followed by commitment in psychiatric

facilities from ages 5 to 12. Before he turned 7, Timm had been diagnosed with bipolar

disorder, schizophrenia, and ADHD; at age 10 he was diagnosed with depressive and

anxiety disorders, and at age 11 he tried to commit suicide by jumping from the hospital

roof. From ages 12 to 15 Timm lived with foster families, but was removed from one

home when the father physically abused him. He returned to his mother’s house, but

there too was abused; twice he was sent to juvenile detention for altercations with his

stepfather after witnessing his stepfather abuse his mother. At age 15 Timm returned to

live with his father, who had a history of crime and drug abuse. Over the next few years

Timm incurred a string of convictions and arrests, mostly for misdemeanors like

shooting paintballs at cars or breaking windows, and as a result he was incarcerated in

Wisconsin from the ages of 17 to 21. Timm took medications for his psychiatric

disorders but stopped in 2012, when he was 22, because he felt they were too expensive.

Timm submitted a sentencing memorandum urging the court to sentence him to

one day for the armed robbery and seven years (the statutory minimum) for

brandishing a firearm. He argued that his high criminal

‐ history score was overstated

because he committed most of the relevant offenses five years earlier when he was 17,

and because he had suffered from “a lifetime” of mental

‐ health problems. Because of

his youth at the time he committed the prior crimes, he said, the criminal

‐ history score

did not reflect accurately his likelihood of recidivating. He stated that his mental

‐ health

history was “of equal significance,” but did not assert that his mental

‐ health problems

caused him to commit the earlier offenses or the armed robbery.

At sentencing Timm’s lawyer repeated these arguments. He stressed that Timm

committed the “juvenile type activity” during a 6 to 12 month “crime spree” when he

was young and impulsive. (His lawyer omits that Timm’s crime spree necessarily—butNo. 14

‐ 2108 Page 3

perhaps not voluntarily

‐‐ stopped at age 17 because he was incarcerated for the next four

years.) Counsel argued briefly about Timm’s mental health, categorizing him as a

“troubled mental health patient” with “some pretty serious issues.” Timm’s father also

addressed the court and explained that when Timm took medication, he was “fine” and

asked the court to order Timm to participate in psychiatric treatment after his release.

The district court adopted the findings of the PSR and imposed a

below

‐ guidelines sentence. The judge explained that it had been a long time since he

had seen a 23

‐ year

‐ old with such a high criminal

‐ history score and even more arrests,

which the judge described as a reflection of the unmitigated fact that Timm had

“absolutely no respect” for the law. After considering the need to deter Timm from

criminal behavior and to protect the public, the court suggested that Timm’s “barebones

conduct” actually warranted a sentence of “something like 15 years.” The court

concluded, however, that an “appropriate, fair, just and reasonable sentence

. . . after

considering all of the relevant conduct, [and] the relevant sentencing factors” was 84

months for brandishing a firearm and 30 months for the armed robbery—at least 54

months below the guidelines range. As a condition of supervised release, the court

ordered Timm to participate in a mental health program, undergo psychiatric

evaluations, and take all prescribed medications.

Timm appeals his sentence, arguing that the district court erred by not

addressing his principal argument that his mental health and youth mitigated his prior

criminal offenses. The government insists that Timm has waived his procedural

objection because he did not ask the district judge for further explanation of the

sentence, despite his opportunity to do so. It’s true that a defendant waives a challenge

to the district court’s consideration of a mitigating argument if, when the court asks, he

responds that he is satisfied that the court addressed his primary arguments. United

States v. Garcia

‐ Segura

, 717 F.3d 566, 569 (7th Cir. 2013); United States v. Donelli

, 747 F.3d

936, 940–41 (7th Cir. 2014). But Timm’s response to the court’s catchall question at the

end of sentencing does not constitute a waiver. In Garcia

‐ Segura we encouraged

sentencing courts to ask defense counsel “after imposing [the] sentence but before

advising the defendant of his right to appeal” if the lawyer was satisfied with the

court’s explanation of the sentence. Id. at 569 (emphasis added). But at Timm’s

sentencing the judge asked the lawyers only, “Are there any additional matters that we

need address?” at the very end of the sentencing hearing after he had imposed the

sentence and conditions of supervised release and explained Timm’s appellate rights.

We agree with Timm that a natural understanding of the judge’s question could be thatNo. 14

‐ 2108 Page 4

he was inquiring about whether there were matters other than sentencing to

address—“such as B.O.P placement or drug treatment.” The judge’s question does not

seem to be asking whether any mitigation arguments have been overlooked or

inadequately addressed. Timm’s lawyer’s response—he requested a specific prison

placement—did not waive Timm’s right to challenge his sentence.

Turning to the merits of this appeal, Timm contends that the district court didn’t

sufficiently respond to his arguments about the effects of his age and mental health on

his criminal

‐ history score. He now presents as two distinct arguments what was

essentially a single argument in the district court—that Timm’s criminal

‐ history score

was overstated. A sentencing court must evaluate the factors in 18 U.S.C. § 3553(a), and

sufficiently explain a sentence to satisfy a reviewing court that it has considered the

parties’ arguments and exercised discretion. See United States v. Davis

, 764 F.3d 690, 694

(7th Cir. 2014); United States v. Spiller

, 732 F.3d 767, 769 (7th Cir. 2013). While the

sentencing court must address a defendant’s potentially meritorious principal

mitigating arguments, less explanation is required when the sentence is within or below

the guidelines range. Davis

, 764 F.3d at 694; United States v. Curby

, 595 F.3d 794, 796–97

(7th Cir. 2010). This court will affirm a sentence even where the district court considers

the arguments implicitly and imprecisely. See United States v. Carrillo

‐ Esparza

, 590 F.3d

538, 540 (7th Cir. 2010) (finding no error where district court did not explicitly mention

mitigating argument but implicitly considered and rejected it); United States v.

Diekemper

, 604 F.3d 345, 355 (7th Cir. 2010) (same); United States v. Poetz

, 582 F.3d 835,

839 (7th Cir. 2009) (same).

The record demonstrates that the sentencing judge considered Timm’s principal

mitigating argument as it was presented at sentencing: His criminal

‐ history score was

overstated because of his youth and mental health at the time he committed prior crimes.

The judge explicitly considered Timm’s youth aggravating; he stated that he had not

recently encountered a 23

‐ year

‐ old with 14 criminal

‐ history points, and remarked that

those points didn’t “begin to address” all of Timm’s other run

‐ ins with the law. In light

of his criminal history at that age, the judge concluded that Timm had no respect for the

law and had to be deterred from further criminal activity.

The totality of the record also makes clear that the court considered Timm’s

mental

‐ health issues as well. The court adopted the detailed findings in the PSR and

listened to Timm’s lawyer and father discuss his mental

‐ health history, but concluded

that Timm’s lack of respect for the law was “unmitigated.” The court dismissed as

“extreme” his request for a sentence of seven years and one day, and expressly orderedNo. 14

‐ 2108 Page 5

Timm to undergo mental

‐ health treatment after his release. See United States v. Paige

, 611

F.3d 397–398 (7th Cir. 2010) (finding no procedural error where judge ordered

mental

‐ health treatment after release, but didn’t “directly state” how mental

‐ health

problems factored into sentence). Moreover, in light of the court’s view that Timm’s

“barebones conduct” warranted a sentence close to 15 years, there can be no explanation

for the actual 30

‐ month sentence other than the court’s consideration of Timm’s mental

health.

Timm compares his sentencing argument and the district court’s explanation to

that in United States v. Cunningham

, 429 F.3d 673, 678–79 (7th Cir. 2005), where the district

judge was silent about a non

‐ frivolous mitigating argument and, unlike here, where

there was no other indication that the district judge considered the defendant’s

potentially meritorious argument. But Timm overlooks another significant distinction.

In Cunningham the lawyer submitted “extensive documentation” of Cunningham’s

psychiatric history to support the argument that his psychiatric problems made him

more susceptible to commit the crime for which he was being sentenced, and therefore

less culpable for that conduct. 429 F.3d at 678–79. In contrast Timm’s lawyer submitted

no such documentation, nor did he argue that Timm’s mental

‐ health issues had any

effect on his culpability for the armed robbery. Instead he asserted only that his criminal

past should be discounted.

Finally we note that by appealing Timm bore a risk of receiving a higher sentence

if the case were remanded. Mental illness sometimes is considered an aggravating rather

than mitigating factor. See e.g.

, Donelli

, 747 F.3d at 940. We don’t know the specifics of

Timm’s medical treatment, but according to the PSR he committed the prior offenses

while taking medication (although his father said he had no problems while medicated).

He discontinued medication in 2012, the same year he committed the armed robbery. It’s

possible that with further consideration the district court might reasonably conclude that

Timm’s mental illness actually weighs in favor of a longer sentence in order to protect

the public from the dangerous behaviors which result from his uncontrolled conduct. He

received a bargain when the court imposed a sentence 54 months below the guidelines

range.

The district judge sufficiently considered Timm’s argument at sentencing. The

court explicitly found Timm’s age aggravating rather than mitigating, and it is apparent

from the transcript of the sentencing, the below

‐ guidelines sentence, and conditions of

supervised release, that the judge considered Timm’s mental health as well.

Accordingly, we AFFIRM the sentence.