### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-2103
U NITED S TATES OF A MERICA, Plaintiff-Appellee,

v.
J ESSE J. B ALLARD , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 17-cr-40079 — J. Phil Gilbert, Judge

.

____________________
A RGUED J ANUARY 16, 2020

— D ECIDED F EBRUARY 14, 2020

____________________

Before F LAUM, M ANION , and K ANNE , Circuit Judges

. M ANION , Circuit Judge . Jesse Ballard has an extraordinarily long history of criminal conduc t, 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, ba tt ery, aggravated assault (amended from rape), possession of a fi rearm as a felon, and multiple convictions for driving with a2 No. 19-2103

suspended or revoked driver’s license. Ballard also accrued a multitude of parole violations and commi tt ed several infractions while in prison. Ballard was arrested once again in December 2017 after he possessed a gun purchased by hi s girlfriend. Ballard pleaded guilty on May 9, 2018, to possessing a fi rearm as a felon, in violation of 18 U.S.C. § 922(g)(1). This was his fi rst 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 Guidelin es range of 180 to 210 months’ imprisonment. At sentencing, the district court considered Ballard’s extensive criminal history, including old o ff enses for which the Guidelines did not assess criminal history points. The court noted this extensive history showed a pa tt ern oflawlessness, a disrespect for the law, an inability to lead a lawabiding life, and a failure of prior sentences to deter Ballardfrom criminal behavior. Citing the § 3553 factors of the defendant’s history and characteri stics, 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.Ballard appealed the court’s application of the Armed Career Criminal Act (ACCA) enhancement. On appeal, the government fi led a confession of error and motion for remand, taking the position thatBallard’s two Illinois a tt empted burglary convictions could not qualify as violent felonies underthe ACCA. Accordingly, we vacated the sentence and remanded the case to the district court for resentencing. United States v. Ballard, No. 18-3294 (7th Cir. Feb. 4, 2019) (order granting motion for remand).No. 19-2103 3

At resentencing, the revised presentence report assigned Ballard o ff ense level 13 and criminal history category VI (the highest category possible). This resulted in a new Guidelines range of 33 to 41 months, with a statutory maximum of 120 months. The district court again pointed to Ballard’s extensive criminal history, which it found demonstrated a disrespect for the law and an inability to live a law-abiding life, and againcited the § 3553 factors of the defendant’s history and characteristics, promoting respect for the law, deterrence, and the need to protect the public. Th e court imposed a new sentence of 108 months’ imprisonment: an approximately 160 percent increase from the high end of Ballard’s revised Guidelines range. The district court did no t articulate why the same factors that justi fi ed a 22-month, 10 percent upward departure in the fi rst sentencing now justi fi ed a 67-month, 160 percent departure at resentencing. Ballard appeals the new sentence. Ballard argues that the district judge commi tt ed procedural error by failing to adequately explain the 160 percent upward departure from the highend of the calculated Guidelines range, and that the 108 months’ sentence was substantively unreasonable as well. 1 We review de novo a procedural challenge to a defendant’s sentence. United States v. Lockwood, 789 F.3d 773, 781 (7th Cir. 2015). If we fi nd no procedural error, we review the substantive reasonableness of the sentence

1 Initially, Ballard also sought to vacate his conviction, arguing the indictment and factual basis for his plea were deficient under Rehaif v. United States , 139 S. Ct. 2191 (2019), for failing to include knowledge of his status as a felon as an element of the crime. However, Ballard conceded at oral argument that this argument was untenable in light of our recent decision in United States v. Williams , 946 F.3d 968, 973–74 (7th Cir. 2020). Based on that concession, we address only Ball ard’s challenges to his sentence.4 No. 19-2103

for abuse of discretion. United States v. Faulkner , 885 F.3d 488, 498 (7th Cir. 2018). Because the Guidelines are advisory, district judges have discretion to sentence a defendant outside the calculated Guidelines range. However, whendoing so, the judge “mustconsider the extent of the deviation and ensure that the justifi cation is su ffi ciently compelling to support the degree of variance.” United States v. Miller, 601 F.3d 734, 739 (7th Cir. 2010) (quoting Gall v. United States , 552 U.S. 38, 50 (2007)). The judge’s explanation of the de viation must “articulate[] and justif[y] the magnitude of the variance.” United States v. Conaway, 713 F.3d 897, 904 (7th Cir. 2013). It follows that more signi fi cant justi fi cation is necessary for more substantial departures. United States v. Castillo , 695 F.3d 672, 673 (7th Cir. 2012); Miller, 601 F.3d at 739. Failing to adequately explain a chosen sentence, including an explanation for deviation from the Guidelines range, is a procedural error. Faulkner, 885 F.3d at 498. In United States v. Johns , in the context of a resentencingwhere the defendant faced a reduced Guidelines range on remand, we cautioned: “[r]egardless of whether the judge gave

a su ffi cient explanation for [an upward departure at the original sentencing], a more substantial departure from a lower guidelines range on resentenci ng should be supported by a more signi fi cant justi fi cation.” 732 F.3d 736, 742 (7th Cir. 2013).
We conclude that the district court commi tt ed procedural error by not providing an adequate explanation for the majorupward departure from the Guidelines range on resentencing. First, the district court failed to provide a justi fi cation that explains the extreme di ff erence between the upward departure of the second sentence versus that of the originalNo. 19-2103 5

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 char acteristics 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 an d 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 thesame factors warranted a much greater departure on resentencing. The district court’s explanation of its departure from the Guidelines upon resentenci ng does not “articulate[] and justif[y] the magnitude of th e variance” where the explanation is essentially identical to the explanation provided for a much less extreme departure in the original sentence. The government argues that the goal of protecting thepublic from Ballard’s continued criminal behavior, a legitimate factor of consideration under § 3553, logically requires a greater departure from a lower Guidelines sentence than from a higher one. That may very well be true. But the district court did not invoke that rationale in its explanation of the sentenceor the magnitude of the departure, and our precedent requires it to do so. Otherwise, the appellate court has no basisto assess whether the new sentence was a reasonable departure from the revised Guidelin es range or an improper attempt to impose a sentence resembling the original one. C.f. Castillo , 695 F.3d at 673 (noting th e purpose of requiring more compelling justi fi cations for more substantial departures is to “enable the court of appeals to assess the reasonableness of the sentence imposed”).6 No. 19-2103

Furthermore, regardless of the proportional di ff erence between the fi rst and second sentencing departures, a 160 percent increase is an abnormally extreme departure from the Guidelines recommendation. Although the Supreme Court has rejected “the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justi fi cations required,” courts of appeals are entitled to “take the degree of variance into account and consider the extent of a deviation from the Guidelines.” Gall , 552 U.S. at 47; see also Castillo , 695 F.3d at 674. An alternative way to judge the magnitude of a departure from the Guidelines is to use the “number of o ff ense levels rather than percentage deviations.” Castillo , 695 F.3d at 675. This is in line with the Senten cing Commission’s guidance to a district judge when consider ing an upward departure based on the criminal history of a defendant already placed in the highest criminal history category (which is exactly the case here). See U.S.S.G. § 4A1.3(a)(4)(B). That provision suggests “the court should structure th e departure by moving incrementally down the sentencing table to the next higher o ff ense level in Criminal History Category VI until it fi nds a guideline range appropriate to the case.” Id. Looking to the sentencing table as our guide, Ballard’s 108-month sentence only comes within range by moving down to o ff ense level 23, a full 10

o ff ense levels higher than Ballard’s assigned o ff ense level of13. By this measure, too, the departure is extreme. Accordingly, the district court owed a signi fi cant justi fi cation for that departure. Castillo , 695 F.3d at 673 (sta ting a departure “far above the top” of the Guidelines range requires more justi fi

cation than an incremental departure).No. 19-2103 7

In discussing aggravating factors not taken into accountby the Guidelines, the district court focused almost exclusively on Ballard’s extensive criminal history and hardly at all on the circumstances and nature of the current o ff ense. Although the Guidelines do account for criminal history, see United States v. Tanner , 628 F.3d 890, 908–09 (7th Cir. 2010), adistrict court is “entitled to consider the defendant’s full criminal history and to impose a sentence tailored to his record” where the Guidelines do not fully re fl ect that history. United States v. Vasquez-Abarca , 946 F.3d 990, 994–95 (7th Cir. 2020) (holding district court properly considered defendant’s criminal history to justify an upw ard departure where Guidelines did not include an o ff ense never charged and two o ff enses older than fi fteen years); see also U.S.S.G. § 4A1.3(a)(1). A district judge is also at liberty to disagree with the Commission’s judgment either categorically or in a particular case. United States v. Corner , 598 F.3d 411, 416 (7th Cir. 2010). However, emphasizing the defendant’s criminal history alone does not adequately explain a departure as extreme as the one in this

case. C.f. Tanner, 628 F.3d at 908–09 (noting “it would be odd” for a Guidelines sentence to be deemed unreasonable “merely by reference to one of the two factors (o ff ense level and, here, the defendant’s criminal history) that the guidelines take into account in every case”). Neither party has pointed us to a similar case within our circuit involving such an ex treme upward departure justi fi ed by criminal history alone, and we have found none. Instead,

we fi nd cases with much less extreme departures supported by more thorough explanations. See, e.g. , United States v. Vasquez-Abarca , 946 F.3d at 994–95 (upholding a 95 percent upward departure where the district judge considered the defendant’s full criminal history and the failure of a previous8 No. 19-2103

shorter sentence for the same o ff ense to deter the defendant, and explained the speci fi c danger posed to the public by the defendant’s current o ff ense); United States v. Jordan , 435 F.3d693, 697 (7th Cir. 2006) (upholding a 75 percent upward departure where the district judg e “described ... at length the many facts and circumstances ... that were pertinent to [the judge’s] evaluation of § 3553(a) factors,” emphasizing the severity of the o ff ense and risk of recidivism, and providing “at least ten speci fi c areas of concern” reg arding the nature of the defendant’s o ff ense, his lack of remorse, and his speci fi c plans for continuing his o ff ense conduct in the future); United States v. Walker, 98 F.3d 944, 947 (7th Cir. 1996) (upholding an increase of a Category VI defend ant’s sentencing range from offense level 10 to o ff ense level 12 to account for extreme criminal history we described as “a one-man crime wave,” spanning 21 years and including 13 convictions, mainly felonies, for crimes as diverse as armed robbery, forgery, and pimping). We recognize that even though we are sending Ballardback to the district court to be sentenced a third time, we cannot place absolute parameters on the district court’s selection of a new sentence. See Koon v. United States , 518 U.S. 81, 98 (1996) (“A district court’s decisi on to depart from the Guidelines ... embodies the traditiona l exercise of discretion by a sentencing court.”). However, we recommend the district court align Ballard’s sentence more closely to the Guidelines by moving incrementally down the Category VI column of the sentencing table until it fi nds an appropriate Guidelines range, as suggested in U.S.S.G. § 4A1.3(a)(4)(B).Because the district court did not provide an adequate explanation for the extreme upward departure from Ballard’sNo. 19-2103 9

recommended Guidelines range, we hold that it commi tt ed procedural error. Accordingly, we VACATE the sentence and REMAND for resentencing.