In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-2103 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

JESSE J. BALLARD, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Illinois. 

No. 17-cr-40079 — J. Phil Gilbert, Judge. 

____________________ 

ARGUED JANUARY 16, 2020 — DECIDED FEBRUARY 14, 2020 

____________________ 

Before FLAUM, MANION, and KANNE, Circuit Judges. 

MANION, Circuit Judge. 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 
2 No. 19-2103 

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 lawabiding 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. 

Ballard appealed the court’s application of the Armed Career Criminal Act (ACCA) enhancement. On appeal, the government filed a confession of error and motion for remand, 

taking the position that Ballard’s two Illinois attempted burglary convictions could not qualify as violent felonies under 

the 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 offense 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 again 

cited the § 3553 factors of the defendant’s history and characteristics, promoting respect for the law, deterrence, and the 

need to protect the public. The 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 not articulate why the same factors that justified a 22-month, 10 percent upward departure in 

the first sentencing now justified a 67-month, 160 percent departure at resentencing. Ballard appeals the new sentence. 

Ballard argues that the district judge committed procedural error by failing to adequately explain the 160 percent 

upward departure from the high end 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 find 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 Ballard’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, when doing so, the judge “must 

consider the extent of the deviation and ensure that the justification is sufficiently 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 deviation 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 significant justification 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 resentencing 

where the defendant faced a reduced Guidelines range on remand, we cautioned: “[r]egardless of whether the judge gave 

a sufficient explanation for [an upward departure at the original sentencing], a more substantial departure from a lower 

guidelines range on resentencing should be supported by a 

more significant justification.” 732 F.3d 736, 742 (7th Cir. 

2013). 

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 
No. 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 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. 

The government argues that the goal of protecting the 

public 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 sentence 

or the magnitude of the departure, and our precedent requires it to do so. Otherwise, the appellate court has no basis 

to assess whether the new sentence was a reasonable departure from the revised Guidelines range or an improper attempt to impose a sentence resembling the original one. C.f. 

Castillo, 695 F.3d at 673 (noting the purpose of requiring more 

compelling justifications 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 difference between the first 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 justifications 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 offense levels 

rather than percentage deviations.” Castillo, 695 F.3d at 675. 

This is in line with the Sentencing Commission’s guidance to 

a district judge when considering 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 the departure by moving incrementally down the sentencing table to the next higher offense 

level in Criminal History Category VI until it finds 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 offense level 23, a full 10 

offense levels higher than Ballard’s assigned offense level of 

13. By this measure, too, the departure is extreme. Accordingly, the district court owed a significant justification for that 

departure. Castillo, 695 F.3d at 673 (stating a departure “far 

above the top” of the Guidelines range requires more justification than an incremental departure). 
No. 19-2103 7

In discussing aggravating factors not taken into account 

by 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 offense. Although the Guidelines do account for criminal history, see 

United States v. Tanner, 628 F.3d 890, 908–09 (7th Cir. 2010), a 

district 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 reflect 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 upward departure where Guidelines 

did not include an offense never charged and two offenses 

older than fifteen 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 (offense 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 extreme upward departure justified 

by criminal history alone, and we have found none. Instead, 

we find 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 previous 
8 No. 19-2103 

shorter sentence for the same offense to deter the defendant, 

and explained the specific danger posed to the public by the 

defendant’s current offense); United States v. Jordan, 435 F.3d 

693, 697 (7th Cir. 2006) (upholding a 75 percent upward departure where the district judge “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 offense and risk of recidivism, and providing “at 

least ten specific areas of concern” regarding the nature of the 

defendant’s offense, his lack of remorse, and his specific plans 

for continuing his offense conduct in the future); United States 

v. Walker, 98 F.3d 944, 947 (7th Cir. 1996) (upholding an increase of a Category VI defendant’s sentencing range from offense level 10 to offense 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 Ballard 

back 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 decision to depart from the Guidelines ... embodies the traditional 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 finds 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’s 
No. 19-2103 9

recommended Guidelines range, we hold that it committed 

procedural error. Accordingly, we VACATE the sentence and 

REMAND for resentencing.