United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 1, 2011*

Decided November 14,  2011

Before

  DIANE P. WOOD, Circuit Judge

  ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

   

No. 11‐1282

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

RONALD COLBERT TAYLOR, JR.,

Defendant‐Appellant.                 

Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 09‐CR‐238

C. N. Clevert, Jr.,

Chief Judge.

O R D E R

Ronald Taylor robbed the Westbury Bank by handing the teller a note demanding

money. He later shared part of the loot with his cousin, who was standing inside the bank

lobby during the robbery. Police apprehended the pair after a fingerprint at the scene

identified Taylor, who confessed to the crime. While in custody Taylor suffered several

seizures, leading to the discovery of a malignant brain tumor. He pleaded guilty to bank

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1

*

After examining the briefs and the record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.

34(a)(2).
No. 11‐1282 Page 2

robbery, 18 U.S.C. § 2113(a), and at sentencing he argued that the tumor and a brain injury

he suffered as a child had left him with a diminished capacity to resist criminal conduct,

including the bank robbery. See U.S.S.G § 5K2.13. On that basis, Taylor argued, a prison

sentence below the guidelines range was warranted. The district court conducted the

sentencing hearing in three parts over three different days. During the first two sessions,

one of which occurred partly in chambers without a court reporter, the court expressed

skepticism about Taylor’s claim of diminished capacity but never definitively rejected the

contention or explained the weight it would be given. Then during the final session, when

Taylor’s sentence was imposed, the court made no reference to diminished capacity when

explaining how it arrived at a below‐range term of 120 months. Instead, the court explained

that its choice of sentence was appropriate because of Taylor’s extensive criminal history

and the Bureau of Prisons’ capacity to treat his tumor.

Taylor has appealed his prison sentence and contends—and the government

concedes—that diminished capacity was a principal argument in mitigation that the district

court was obligated to address. Of course the district court was not required to accept

Taylor’s contention that his tumor and childhood injury contributed to his crime or

warranted an even lower sentence, United States v. Garthus, 652 F.3d 715, 718 (7th Cir. 2011),

but the court was obligated to address this ground in mitigation because it was one of

Taylor’s principal sentencing arguments and was backed with a psychological evaluation,

see id.; United States v. Johnson, 643 F.3d 545, 549 (7th Cir. 2011); United States v. Arberry, 612

F.3d 898, 899 (7th Cir. 2010); United States v. Portman, 599 F.3d 633, 636–37 (7th Cir. 2010).

The court’s failure to respond to the contention requires resentencing.

Taylor also argues that the district court committed error by taking into account the

sentence received by his cousin but not explaining how that factor was weighed. Taylor’s

cousin had pleaded guilty to misprision of a felony, 18 U.S.C. § 4, and been sentenced to a

year and a day in prison. According to Taylor, during the in‐chambers discussion the court

commented that giving Taylor probation, as he was then advocating, would leave his

cousin—whom the court characterized as an accessory after the fact—with a sentence

disproportionate to that of Taylor, the robber and a career offender. Taylor later moderated

his position and suggested that a year‐long sentence would be appropriate for him as well,

but the district court did not further respond to that contention when sentencing Taylor to

120 months, 31 months under the low end of the guidelines range. Taylor apparently

assumes that the court still thought, but did not say, that giving him only a year would

create imbalance with the sentence received by his cousin.

We have difficulty following Taylor’s perception of error. He criticizes the district

court’s oversight in conducting a brief segment of the sentencing proceedings off the record,

and on that point we agree with him that a court reporter should have been present. See 28
No. 11‐1282 Page 3

U.S.C. § 753(b). As best we can tell from the parties’ briefs, however, no substantive

information was conveyed to the judge in chambers, and nothing that the judge allegedly

said during that conference undermines the explanation later given for the sentence

imposed. Taylor never asserted during the protracted sentencing proceedings that he would

end up with a disproportionate sentence if he did not get the same (or less) prison time than

his cousin. Taylor never argued that his cousin’s circumstances were a mitigating factor,

and instead it was the district judge who cited the cousin’s sentence as a reason why the light

sentence Taylor advocated for himself was not appropriate. It appears that the judge

thought—and said—that Taylor, the actual robber, was deserving of more prison time than

his cousin, who only shared in the stolen funds. If that were all, we might conclude that any

error was harmless. Nevertheless, we have already concluded that we must vacate Taylor’s

sentence and remand for resentencing because of the question of diminished capacity. In

order to ensure that the ultimate result is free from any doubt about the possible effects of

that brief off‐the‐record session, we order that this should be a full resentencing, at which

both Taylor and the government will be free to explore any issues they see fit.

Accordingly, Taylor’s sentence is VACATED, and the matter is REMANDED for

resentencing.