United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued July 7, 2020

Decided July 27, 2020

Before

DIANE S. SYKES, Chief Judge

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 19-3478

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTONIO BROWN,

Defendant-Appellant.

Appeal from the United States District 

Court for the Northern District of 

Illinois, Eastern Division. 

No. 1:19-CR-00072(1)

Ronald A. Guzmán,

Judge.

O R D E R

Antonio Brown pleaded guilty to unlawful possession of a firearm, 18 U.S.C. 

§ 922(g)(1), and was sentenced to 82 months in prison—a length twice the high end of

the Guidelines range. Because the district court adequately justified its aboveGuidelines sentence, we affirm the judgment.

Seven months after his release from an Illinois state prison (he served four years 

for attempted armed robbery), Brown again encountered law enforcement. He was 

riding in the passenger seat of a stolen car when Chicago police stopped and searched 

the vehicle. Underneath the passenger-seat cushion, the officers found a semiautomatic 

pistol with an extended-capacity magazine holding 19 live rounds of ammunition. On 

the floorboard under the passenger seat, they found another large-capacity magazine 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 19-3478 Page 2

with 42 live rounds. Given his prior felony, Brown was charged with, and pleaded 

guilty to, one count of unlawfully possessing a firearm. See 18 U.S.C. 922(g)(1). 

The government and the PSR both recommended a sentence within the 

applicable Guidelines range of 33 to 41 months. The government emphasized that the 

gun was “extra dangerous” and that the “only possible purpose” for carrying 61 rounds 

of ammunition would be “to rain down a large amount of bullets in a short amount of 

time.” The offense was not a “one-time, split-second mistake,” the government urged, 

pointing out that Brown’s prior felony also involved a gun and that he had posted to

social media several homemade rap videos and photos of him flashing firearms. 

Brown argued for a below-Guidelines sentence of 24 months. His counsel 

discussed the mitigating circumstances of Brown’s upbringing, noting, for instance, that 

he “was raised in a community of violence.” Counsel also highlighted reasons why 

Brown was a strong candidate for rehabilitation: his prompt acceptance of 

responsibility for the offense (he expressed a desire to plead guilty on just his third 

court appearance); his supportive family; his plan to get married and find work; and his 

completion of a GED while in pretrial detention, a feat the defense considered 

“significant” because it shows “the potential [Brown] has to change his life.”

The judge sentenced Brown to 82 months in prison, double the top of the 

Guidelines range, followed by three years’ supervised release. Central to the court’s 

rationale was the likelihood that Brown intended to partake in a drive-by shooting of 

the sort that ravages Chicago and kills innocent bystanders:

[I]t’s clear to me that a reasonable inference to be drawn from this set of 

facts ... is that the defendant was apparently meant to be the shooter in yet 

another Chicago-style drive-by shooting. ... This is where perpetrators are 

armed with semiautomatic weapons, [and they] spray bullets as fast as they 

can as their car passes by their designated target. ... As often as not, 

innocent people are killed by stray bullets. As often as not, children are 

wounded or killed. ... People have been injured while passing the time in 

their front lawns, while watching television inside their own living rooms. 

Children have to be walked to school through so-called “safe-zones,” which 

are not safe, in order to protect them.

The judge denounced the “consistent, relentless violence” caused by drive-by shootings, 

emphasizing that nearly 2,000 such shootings had taken place in Chicago that year. “No 

one,” the judge added, “should have to live with people like this defendant driving 
No. 19-3478 Page 3

around their neighborhoods in automobiles with half a hundred bullets and guns to 

shoot them.”

The judge then addressed Brown’s personal attributes, which he believed made 

Brown a “poor candidate for rehabilitation.” At 25 years of age, Brown had not held a 

job for “more than seven months,” and he committed the unlawful-possession offense 

within a year of being released from prison. The judge also deemed Brown 

“unrepentant,” noting that he posted photos of firearms to social media “[i]n spite of 

the fact that his siblings ha[d] been killed ... and that he himself ha[d] been shot on 

multiple occasions.” An above-Guidelines sentence was “absolutely necessary,” the 

judge concluded, because Brown’s prior “48 months [in state prison] was totally

insufficient to even delay, much less deter, repetitive criminal conduct.”

Given our deferential abuse-of-discretion standard of review, Brown faces an 

uphill battle in challenging the length of his sentence. See Gall v. United States, 552 U.S. 

38, 51 (2007). On the other hand, when, as here, a district court imposes a sentence that 

includes an extreme variance, it must offer a more compelling justification consistent 

with the factors listed in 18 U.S.C § 3553(a). See id. at 49–50. We are more likely to 

uphold a sentence as reasonable if the district court’s rationale is sufficiently 

particularized to the circumstances of the case. United States v. Bradley, 675 F.3d 1021, 

1026 (7th Cir. 2012); see also United States v. Miller, 601 F.3d 734, 739–40 (7th Cir. 2010). 

Brown primarily contends that his sentence was unreasonable because the judge

based the extreme upward variance on speculation that Brown intended to participate 

in a drive-by shooting. The judge focused on rampant gun violence in Chicago, a 

rationale Brown calls “neither reasonable nor appropriate” because he himself had not 

been accused of participating—or intending to participate—in any shooting incidents. 

True, the judge’s inference that Brown is a likely candidate to participate in a driveby shooting was speculative and thus would not by itself have compelled such a 

significant variance. Nothing in the record—apart from the fact of Brown’s proximity in 

the car to a loaded gun—suggests that a drive-by shooting was his aim. To the extent the 

judge meant for the sentence to generally deter drive-by shootings, doing so would be 

improper if it were unrelated to the underlying facts of the case: “[I]t is inappropriate to 

blame [a defendant] for issues of broad local ... scope that only tangentially relate to his 

underlying conduct.” United States v. Robinson, 829 F.3d 878, 880 (7th Cir. 2016) (vacating 

the sentence when the “court engaged in several wide-ranging soliloquies on urban 

decay” that “had no basis in the record”) (quotation marks omitted) (alteration in 

original).
No. 19-3478 Page 4

Even so, the judge offered other reasons consistent with § 3553(a) that support the 

upward variance. See Bradley, 675 F.3d at 1026 (noting that an improper consideration “is 

just one of many reasons the judge gave for a sentence outside the guidelines range, the 

sentence will be affirmed”) (quotation marks omitted). The judge explained that the 

upward variance was necessary to account for the circumstances of the offense (the 

quantity of ammunition and the fact that the offense occurred less than a year after 

Brown’s release from prison); deterrence (his prior sentence of 48 months was 

“insufficient to delay, much less deter” further criminal activity); and Brown’s history 

and characteristics (his sparse employment record, prior gun-related conviction, lack of 

repentance, and evident pride in his association with guns—as reflected in social-media 

posts—despite the fact that he and his siblings had previously been shot). In light of these 

determinations and even without crediting the judge’s speculation that Brown was 

planning to participate in a drive-by shooting, the upward variance was reasonable. 

Brown also argues that two of the judge’s stated reasons for the upward variance 

were impermissible: his unemployment record and criminal history. He contends that 

the policy statements under the Sentencing Guidelines bar the district court from 

considering his unemployment record as a basis for an upward departure. See U.S.S.G 

§ 5H1.5 (“Employment record is not ordinarily relevant in determining whether a 

departure is warranted.”). But the policy statements, like the Guidelines themselves, are 

advisory, see United States v. Booker, 543 U.S. 220, 246–47 (2005), so the “consideration of 

[a defendant’s employment history] is not strictly prohibited,” United States v. Ross, 

501 F.3d 851, 854 (7th Cir. 2007). Finally, Brown maintains that the judge could not base 

an upward variance on his criminal history because it was already accounted for in the 

calculated Guidelines range. But the judge was “entitled to consider the defendant’s full 

criminal history and to impose a sentence tailored to his record.” United States v. 

Vasquez-Abarca, 946 F.3d 990, 995 (7th Cir. 2020); see also United States v. Kuczora, 910 F.3d 

904, 908 (7th Cir. 2018).

AFFIRMED