In the

United States Court of Appeals

For the Seventh Circuit

No. 16-2035

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

TERRY JOE SMITH,

Defendant-Appellee.

Appeal from the United States District Court for the 

Southern District of Indiana, Terre Haute Division.

No. 2:14-cr-00006-WTL-CMM-1 — William T. Lawrence, Judge.

ARGUED APRIL 12, 2017 — DECIDED JUNE 19, 2017

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. A jury convicted Terry Joe Smith, a

police officer, of violating 18 U.S.C. § 242, by subjecting two

men to the intentional use of unreasonable and excessive force,

and violating their civil right to be free of such abuse. The

district court sentenced Smith to fourteen months’ imprisonment, less than half the low end of the applicable guidelines

range. In the first appeal of the case, we affirmed Smith’s
2 No. 16-2035

conviction but vacated the sentence and remanded for full

resentencing, concluding that the court had failed to justify the

below-guidelines sentence. United States v. Smith, 811 F.3d 907

(7th Cir. 2016). On remand, the court again sentenced Smith to

fourteen months’ imprisonment and once more failed to

adequately explain or justify the below-guidelines sentence.

We again vacate and remand for a complete re-sentencing.

I.

Smith was a police officer employed by the Putnam County

Sheriff’s Department. In two separate incidents, Smith violently assaulted arrestees who were already under control and

not actively resisting arrest. At trial, Smith’s fellow police

officers testified against him, describing the unwarranted

attacks. In the first incident, Smith punched the arrestee in the

face with a closed fist, causing bleeding and swelling on his

face. Two officers testified that the blow made the sound of a

tomato hitting a concrete wall. At the time, the arrestee was

fully under the control of four other officers, and the arrestee

posed no danger to Smith. A fellow officer testified that he had

been trained to refrain from striking anyone in the head with

a closed fist unless he was in a “deadly force” situation because

such a blow could be lethal. After that incident, Smith bragged

about his behavior to other officers and mocked those who

objected to his unjustified attack. The arrestee had to be

removed from the scene in an ambulance. 

Several months later, in the second attack, Smith and other

officers arrested an intoxicated man accused of battering a

woman during a domestic dispute. Smith led the handcuffed

arrestee to a patrol car. On reaching the car, Smith raised the
No. 16-2035 3

man into the air, threw him face-first onto the ground and

drove his knee into the man’s back with such force that the

man defecated on himself. The man suffered injuries to his

1

back and ribs. Smith later bragged that this was not the first

time hehad made someone defecate on himself. Again, Smith’s

fellow officers testified that the arrestee was not actively

resisting in any manner and that the use of force was unjustified and excessive.

Smith’s guidelines range was thirty-three to forty-one

months’ imprisonment. Smith was in Criminal History

Category I, based on one prior conviction for misdemeanor

battery of a three-year-old child and the child’s mother, who

was then Smith’s wife. The trial judge began the first sentencing hearing by considering the nature and circumstances of the

offenses of conviction, noting only that he would rely on his

memory of the trial and paragraphs four through seven of the

presentence investigation report. The courtnoted difficulties in

Smith’s childhood. His young, troubledparents were unable to

care for him but all four grandparents stepped in to raise him.

His sister was killed by a drunk driver, leading Smith to

participate in “victim impact panels” with the non-profit

organization Mothers Against Drunk Driving. The court

credited his work history, describing Smith as “indeed a

person who does not shy away from work.” R. 93, at 30. Smith

had also served as an elected public official and a volunteer

coach in local leagues and schools. He had the support of his

community and family, including his surviving grandparents,

 Smith is six feet three inches tall and, at the time of his probation report, 1

weighed 270 pounds.
4 No. 16-2035

and his fourth wife. He had custody of his son and guardianship of the daughter of a friend who was incarcerated. 

On the other hand, Smith had not taken responsibility for

his actions, had “unaddressed anger control issues,” and had

engaged in other misconduct that had not resulted in criminal

charges. R. 93, at 33. In particular, he had assaulted two

juveniles at a facility where he was working as a correctional

officer, and then lied to cover up his conduct. At a different

facility, he had removed an inmate from the jail, supplied

tobacco products to that inmate, and improperly recorded the

conversations of otherinmates. He had also engaged in “ghost

employment.” The court remarkedthat,if Smithaddressed his

2

anger control issues, his risk of re-offending was “slight.” R. 93,

at 34. Noting that there was no excuse for punching or abusing

persons who are handcuffed, the court compared the sentences

of other officers who had been convicted of engaging in similar

conduct. The district court then sentenced Smith to a fourteenmonth term, less than half the bottom end of the guidelines

range. In explaining the below-guidelines sentence, the court

 There is some irony in the court crediting Smith as someone who “does

2

not shy away from work” given that Smith was fired from the Putnam

CountySheriff’sDepartment for mistreating prisoners and giving aninmate

tobacco; fired from the Plainfield Juvenile Correctional Facility where he

assaulted two juveniles and falsified reports; fired from a job with Putnam

County and from a private employer for clocking in at both of those jobs at

the same time (the “ghost employment” incident); and finally fired again

by the Putnam County Sheriff for the unlawful conduct at the core of this

case. Although Smith does “not shy away from work,” he also does not shy

away from inappropriate and unlawful conduct at work, losing five

separate jobs because of his behavior.
No. 16-2035 5

said only, “This sentence is a downward variance based upon

the history and characteristics that Mr. Smith presents as well

as the nature and circumstances of this offense.” R. 93, at 38.

Smith appealed his conviction, and the government crossappealed his sentence. We affirmed the conviction but vacated

and remanded for a complete re-sentencing. Smith, 811 F.3d at

909–10. We noted that, although a sentence that low need not

be unreasonable, the farther a judge strays from the guidelines

range, “the more important it is that he give cogent reasons for

rejecting the thinking of the Sentencing Commission.” 811 F.3d

at 910. We took issue with the court’s conclusion that Smith

was unlikely to re-offend if he addressed his anger management issues. Nothing in the record described the anger

management program that Smith was required to undergo as

a condition of supervised release and there was reason to

question the efficacy of such an undefined program in light of

Smith’s history of violence and bizarre conduct towards the

victims of his offenses of conviction. 

As for the district court’s efforts to compare Smith’s

offenses to those in other cases, we noted that in the majority

of the cases, the conduct was either similar to or not as egregious as Smith’s crimes and yet the sentences were much

higher than the sentence meted out to Smith: 

Apart from the judge’s reference to anger management and comments on Smith’s minor good works

in the community, no reason for the light sentence

he imposed can be found in the transcript of the

sentencing hearing.
6 No. 16-2035

811 F.3d at 911. We therefore vacated and remanded for

resentencing.

Coincidentally, Smith was released from prison on the day

our opinion issued. By the time he came to the court for

resentencing, there was only slightly more information for the

court to consider in setting his sentence. A large part of the

second sentencing transcript tracks the first, virtually word for

word. Since the first sentencing, Smith had served his time in

prison without conduct violations. He completed fourteen

hours of educational programming and worked in prison in

plumbing and as a compound orderly. After his release and

before resentencing, he secured employment, first as a car

salesman and then as finance manager at the same dealership.

He had paid his fine in full as well as the special assessment

imposed at the first sentencing. He was enrolled in an eightweek anger management class, and was living with his wife,

son and ward. His probation officer reported that Smith told

her that he “had time to think about the victims of his offenses,

and he is taking ownership of his actions. He is preparing a

letter to the Court addressing this topic.” R. 127, at 5.

Smith did make a statement at his second sentencing

hearing but it is difficult to find mention of his victims or much

of a sense of ownership of his actions in his remarks. We

reproduce in full the letter he read aloud:

Your Honor, as you may know, it is very dangerous

being an ex-police officer in prison; but yet, there are

little to no secrets in prison. Most inmates know

why you are there before they even ask you. I had

guys that hated me, not for being me but for my ex-
No. 16-2035 7

profession. I made it clear I was no longer a sheriff’s

deputy, and I was an inmate just like them; and I

was there to better myself, just as they were.

As I took classes, worked, prayed and went to

church next to these inmates, I learned that not all

but most of them were just like me, people who

made mistakes and were trying to betterthemselves.

I witnessed guys getting GEDs, furthermore, getting

trades in plumbing, heating and cooling, sewing,

music and many other skills.

Many of these inmates had never once been in

trouble while being incarcerated. They were role

model inmates and doing everything they could to

betterthemselves. One guy inparticular named Paul

was sentenced to 15 years. He spent most of his five

years learning how to read and write. He finally

obtained his GED. He then took the next year

enrolling in a heating and cooling class where he

completed it in four years. He had never been

disciplined, yet, had several years to just sit and wait

for his sentence to run out. He was just sitting there

waiting for his out date.

Why do I tell you this? I tell you this because you

made the right decision when it came to sentencing

me. I want to be an example to other judges, prosecutors that not every man that makes a mistake

needs a long sentence and that when you have done

everything to better yourself and when you have

years left to serve – to sit and wait for your sentence
8 No. 16-2035

to run out and the only thing you’re waiting for is an

out date, it is the family, children and communities

that are serving the sentence.

I don’t stand before you and say that I have a formula to fix the sentencing. I just—I have been on

both sides; and while I once would say lock them up

and throw away the key, I now say I was uneducated and so wrong.

While being incarcerated, I met doctors, politicians,

pilots, cooks and even drug dealers. I now know

that each case is special in its own way, and not

everyone needs such a long sentence. I must say of

all people, you understand that.

I can say that because of the sentence you handed

me. You knew exactly what I needed to get back on

track and I thank you. I hope my actions during and

after my incarceration have validated your sentencing choice for me. I thank you for the opportunity

you’ve given me. Thank you.

R. 135, at 12–14.

Despite the lack of any mention of his victims in the

statement that was to explain his new-found “ownership” of

his actions, the district court found it “telling” that Smith was

now referring to his victims as victims when speaking to his

probation officer. R. 135, at 31. The court then mentioned

guideline section 3E1.1(a), which allows for a reduction in

offense level for defendants who have accepted responsibility

for their crimes. Noting that neither side proposed or discussed
No. 16-2035 9

a two-level reduction, the court nevertheless remarked that it

was aware of the reduction as Smith appeared “to now be

accepting responsibility for” his actions. R. 135, at 31. The court

rejected Smith’s argument that the deterrent effect of a sentence of imprisonment is speculative, and noted that Smith

may continue to have “unaddressed anger control issues,” as

evidenced by his conviction for battering a three-year-old

child. R. 135, at 32. The court mentioned Smith’s other troubling acts that the government had again described, acts for

which Smith suffered little or no consequences. Noting Smith’s

lack of conduct violations and his efforts toward education and

work in prison, the court said that Smith’s incarceration “may

indeed have been helpful,” and that Smith “probably [had]

shown insightfulness in regards to the incarceration that [he]

sustained.” R. 135, at 34. The court found that Smith’s enrollment in an eight-week anger management program was a

“good start” that would be helpful going forward. The court

recommended that the program director evaluate Smith at the

end of that program, that the assessment be shared with his

probation officer and that Smith should work with the probation officer for follow-up counseling. R. 135, at 34–35.

The court then discussed the need to avoid unwarranted

sentencing disparities, discussing again some of the same cases

it had considered at the first sentencing but going into more

detail on the facts of each. In particular, the court considered

United States v. Christian, 342 F.3d 744 (7th Cir. 2003). The court

distinguished Christian on the ground that the officer was not

involved in an arrest situation at the time he attacked an

arrestee. The court was also reluctant to compare the cases

because the court did not know Christian’s background. The
10 No. 16-2035

court also addressed United States v. Bartlett, 567 F.3d 901 (7th

Cir. 2009), a case that the court found involved conduct far

beyond what Smith had done. 

The court then sentenced Smith once again to a term of

fourteen months’ imprisonment, and two years of supervised

release, giving him credit for the time already served in prison.

The court noted:

This sentence is a departure based upon Section

5K2.1, as well as a variance based upon the history

and circumstances of this defendant as well as the

nature and circumstances of this offense.

I do not see any benefit in reincarcerating Mr. Smith.

His anger control counseling would be interrupted.

He will lose his job again. He will also disrupt the

stability of his children, whom I assume have now

adopted [sic] to having him back in the home.

R. 135, at 44. In addressing the need to promote respect for the

law and deter others from committing similar crimes, the court

mentionedthat Smith had incurred two felony convictions,lost

his job as a police officer, resigned his position on the city

council, and lost his reputation within the community. The 3

government objected to the sentence on grounds of procedural

and substantive unreasonableness, and has once again appealed from the sentence.

Losing one’s job and reputation are the normal consequences of commit- 3

ting a felony at work. It is unclear how these naturally occurring repercussions that are not part of any sentence would promote respect for the law

and deter others from committing similar crimes. 
No. 16-2035 11

II.

On appeal, the government contends that the court procedurally erred by failing to adequately explain why Smith

received a considerably below-guidelines sentence, and by

crediting Smith for acceptance of responsibility. The government also argues that the sentence is substantively unreasonable in light of the court’s failure to justify it and because it

creates an unwarranted disparity in comparison to similar

cases nationwide. Our review of sentencing decisions is limited

to whether they are reasonable, applying the abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007); United

States v. McLaughlin, 760 F.3d 699, 703 (7th Cir. 2014). We first

must ensure that the district court committed no significant

procedural error, such as incorrectly calculating the guidelines

range, failing to consider the section 3553(a) factors, selecting

a sentence based on clearly erroneous facts, or failing to

explain adequately the chosen sentence. Gall, 552 U.S. at 51.

Whether thedistrict courtfollowed the proper procedures after

United States v. Booker, 543 U.S. 220 (2005), in imposing sentence

is a question of law we review de novo. United States v. Mendoza,

510 F.3d 749, 754 (7th Cir. 2007). 

If the sentencing decision is procedurally sound, we then

consider the substantive reasonableness of the sentence under

the abuse-of-discretion standard, taking into account the

totality of the circumstances, including the extent of any

variance from the guidelines range. Id. Moreover, the Supreme

Court found that it is:

uncontroversial that a major departure should be

supported by a more significant justification than a
12 No. 16-2035

minor one. After settling on the appropriate sentence, [the judge] must adequately explain the

chosen sentence to allow for meaningful appellate

review and to promote the perception of fair sentencing.

Gall, 552 U.S. at 50. See also United States v. Warner, 792 F.3d

847, 855 (7th Cir. 2015) (noting that section 3553(c)requires the

district judge to state in open court the reasons for imposing a

particular sentence). 

The parties agree that the district court correctly calculated

the guidelines range, which was thirty-three to forty-one

months. See Gall, 552 U.S. at 49 (a district court should begin all

sentencing proceedings by correctly calculating the applicable

guidelines range). The district court then substantially departed from the guidelines range, giving Smith a sentence that

is less than half of the bottom of the range. When a judge

decides to sentence outside the guidelines range, he or she

“must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree of

the variance.” Id.

We agree with the government that the court erred procedurally by failing to adequately explain or justify the significantly below-guidelines sentence that it rendered. In justifying

the sentence here, the court cited: (1) guidelines section 5K2.1;

(2) the history and characteristics of the defendant; and (3) the

nature and circumstances of the offense. We assume that the

reference to guidelines section 5K2.1 was either a typographical error or a simple misstatement. Section 5K2.1 allows a court

to increase a sentence above the guidelines range if death
No. 16-2035 13

resulted. Presumably, the court meant to refer to guidelines

section 5K2.10, which the probation officer had cited in her

recommendation for setting Smith’s sentence. That provision

allows a court to reduce a sentence below the guidelines range

if “the victim's wrongful conduct contributed significantly to

provoking the offense behavior.” U.S.S.G. § 5K2.10. But the

district court made no finding that either of Smith’s victims did

anything to provoke Smith’s attacks. Moreover, the probation

officer offered no evidence of provocation in the presentence

investigation report and Smith cites no evidence that supports

a conclusion that the victims provoked his attacks. Nor did the

court consider the factors set forth in the guidelines policy

statement, such as the relative size and strength of the victim

compared to the defendant, the persistence of the victim’s

conduct, efforts by the defendant to prevent the confrontation,

and the proportionality and reasonableness of the defendant’s

response to the victim’s provocation, among other things.

Nothing in the sentencing transcript or presentence investigation report would warrant application of section 5K2.10 in

these circumstances. Because there was no discussion of

guideline 5K2.10 (except for the brief, erroneous reference to

section 5K2.1), we cannot be sure if the court meant to use it to

justify the reduction in Smith’s sentence. Because we are

remanding for resentencing, we note that, if the court in fact

relied on section 5K2.10, nothing in the record as it stands

justifies application of that provision.

The sentencing judge also invoked the nature and circumstances of the offense as a reason to sentence below the

guidelines. But the judge’s only mention of the nature and

circumstances of the offense came when he said that he would
14 No. 16-2035

rely on his memory of the trial and certain paragraphs of the

presentence investigation report for his consideration of this

factor. A review of the cited paragraphs of the presentence

investigation report as well as the trial transcript shows that

Smith twice violently attacked arrestees who were already

under control and were not actively resisting arrest. These

were typical excessive-force crimes. No mitigating circumstances are apparent from the record and the court cited none.

See e.g., Warner, 792 F.3d at 859 (noting as mitigating factors for

the nature and circumstances of an offense that the defendant’s

crime was isolated and uncharacteristic, that the defendant was

elderly and had no prior criminal history, that he posed no

danger to society, and that he attempted to come forward and

rectify his crime before he knew that he was under investigation). In fact, a court might consider it an aggravating factor

that Smith was convicted of two counts of excessive force

arising from separate incidents, each in circumstances that

could not be explained by the heat of the moment. Moreover,

he later bragged about his behavior and mocked his fellow

officers when they questioned his actions. Before we can

conclude that a court did not abuse its discretion, we have to

satisfy ourselves that the court exercised its discretion, that is,

that the court considered the factors relevant to that exercise.

United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005).

The court’s brief mention of the nature and circumstances of

the offense affords no basis to review that exercise of discretion.

We turn to the history and characteristics of the defendant.

The government first asserts that the court committed procedural error in crediting Smith for acceptance of responsibility.
No. 16-2035 15

Section 3E1.1(a) of the guidelines provides, “If the defendant

clearly demonstrates acceptance of responsibility for his

offense, decrease the offense level by 2 levels.” The provision

generally applies to defendants who truthfully admit the

conduct comprising the offense of conviction:

This adjustment is not intended to apply to a defendant who puts the government to its burden of

proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits

guilt and expresses remorse. Conviction by trial,

however, does not automatically preclude a defendant from consideration for such a reduction. In rare

situations a defendant may clearly demonstrate an

acceptance of responsibility for his criminal conduct

even though he exercises his constitutional right to

a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that

do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the

applicability of a statute to his conduct). In each such

instance, however, a determination that a defendant

has accepted responsibility will be based primarily

upon pre-trial statements and conduct.

U.S.S.G. § 3E1.1, Commentary, Application Notes 1 & 2. It is

clear from this language that Smith is not the type of defendant

for whom the guideline was drafted. Smith has never truthfully admitted the conduct comprising the offense of conviction. Moreover, Smith put the government to its burden of

proof at trial, denied the essential factual elements of guilt, was

convicted, and served a period of incarceration before ever
16 No. 16-2035

uttering any words that could be construed as remorseful.

Even a defendant who pleads guilty is not entitled to an

adjustment for acceptance of responsibility as a matter of right.

U.S.S.G. § 3E1.1, Commentary, Application Note 3; United

States v. Booker, 248 F.3d 683, 690 (7th Cir. 2001). Rather, the

defendant bears the burden of demonstrating to the district

court that he accepts moral responsibility for his offense and is

entitled to a reduction. United States v. DeLeon, 603 F.3d 397,

408 (7th Cir. 2010); Booker, 248 F.3d at 690. 

The district court did not formally apply the two-level

guideline reduction, instead noting only that the court was

aware of the guideline and that Smith appeared now to be

accepting responsibility. Presumably, then, the court meant

that it would take Smith’s purported acceptance of responsibility into account not as a guidelines factor but rather as a

statutorymatter under section 3553(a). The government asserts

that it would be improper to import into the 3553(a) analysis a

consideration that the guidelines expressly exclude. But after

United States v. Booker, 543 U.S. 220 (2005), a sentencing judge

has the discretion to disagree with a particular provision of the

guidelines and to impose a non-guidelines sentence that, in his

or her judgment, is more consistent with the statutory sentencing factors set out in section 3553(a). Kimbrough v. United States,

552 U.S. 85 (2007); United States v. Rosales, 813 F.3d 634, 637 (7th

Cir. 2016). 

In principle, therefore, a court could disagree with the

provisions set forth in guideline section 3E1.1 and instead

account for remorse as part of the section 3553(a) factors. In

practice, though, there are two problems with the court’s use
No. 16-2035 17

of Smith’s remorse to reduce his sentence. First, it is entirely

unclear from the record whether the court meant to do what

we have just proposed. That is, it is unclear whether the court

actually disagreed with the provisions of guideline 3E1.1 and

meant to override the guideline with its own analysis. Second,

and more importantly, the record is devoid of any actual

expression of acceptance of responsibility orremorseby Smith.

At most, Smith told his probation officer that he was ready to

“take ownership” of his crimes, and would write a letter

expounding on that ownership to the court. He also began to

refer to his victims as victims. But Smith’s statement to the

court contained, at most, an acknowledgment that some—but

not all—of his fellow prisoners were people like him, who had

made mistakes and were seeking to better themselves. He also

expressedhisnew-found belief that not all defendants required

lengthy sentences, a principle he hoped the court would apply

to him. He never mentioned his victims or his crimes unless

one generously infers that the “mistake” to which he referred

was senselessly beating arrestees who were already under

control and posed no danger to him. He did not concede the

facts of his offenses of conviction and he did not express regret

for anything other than the length of a possible new sentence.

It is certainly admirable that he learned in prison that prisoners

are human beings like himself, but that is a far cry from an

expression of remorse for the harms he caused or acceptance

of responsibility for his crimes. There is nothing resembling the

promised “ownership” in Smith’s remarks to the court.

Because the record does not reveal either a factual or a legal

basis to support the reduction, it was procedural error to

reduce Smith’s sentence for acceptance of responsibility.
18 No. 16-2035

As for the remaining considerations relevant to the history

and characteristics of the defendant, we noted in the first

appeal that the judge had offered “no reason for the light

sentence” imposed apart from a reference to anger management and Smith’s minor good works in the community. Smith,

811 F.3d at 911. The government points out that little changed

between the first and second sentencing proceedings, citing

five additional considerations the court used to justify the

sentence. The government contends that only one was proper

and that it was inadequate to justify the sentence. 

First, the court again referred to the benefits of an anger

management course in reducing Smith’s risk of re-offending.

At the time of resentencing, Smith had started an eight-week

class, which the court called a “good start.” No doubt the class

was a good start but the court did not address the essence of

our concern, namely, whether such a program would in fact be

effective in Smith’s case, especially in light of his extensive

history of violence against vulnerable persons and his bizarre

conduct against the victims here. Smith, 811 F.3d at 910. It may

be true that Smith is unlikely to re-offend if he learns to control

his anger. But in light of his prior conduct and the lack of

evidence that the contemplated program would effectively

resolve his anger issues, there is no basis in the record as it

stands to reduce Smith’s sentence on the ground that he is

unlikely to re-offend.

We have already considered and rejected the second factor

on which the court relied in discounting Smith’s sentence,

whether he had accepted responsibility for his crimes. As the

third consideration, the court cited the disruption to Smith’s

life, including the burden on his family, the loss of his job and
No. 16-2035 19

the interruption of his anger management program. But in

sentencing adefendant, “family ties and responsibilities arenot

ordinarily relevant in determining whether a departuremay be

warranted.” U.S.S.G. § 5H1.6. Mitigation arguments that rely

on the effects of incarceration on the defendant’s children must

identify consequences that go beyond those that any child

would suffer when a parent is imprisoned. United States v.

Gary, 613 F.3d 706, 710 (7th Cir. 2010). Extraordinary family

circumstances may constitute a legitimate basis for imposing a

below-guidelines sentence, under either guidelines provision

5H1.6 or under section 3553(a). United States v. Schroeder, 536

F.3d 746, 755–56 (7th Cir. 2008). But the court cited nothing

unusual in Smith’s family circumstances such as loss of caretaking or financial support that exceeds the harm ordinarily

incident to incarceration for a similarly situated defendant. See

U.S.S.G. § 5H1.6, Commentary, Application Note 1(B).

The court also declined to sentence Smith to further

incarceration because an additional term of imprisonment

would interrupt his anger management class. Although the

guidelines provide that a downward departure may be

appropriate to accomplish a specific treatment purpose if the

defendant suffers from a mental or emotional condition, the

court found that Smith has no history of mental health problems, no alcohol or substance abuse problems, was not under

the care of a physician and was not taking any medications. See

U.S.S.G. §§ 5C1.1, Commentary, Application Note 6 and 5H1.3;

R. 135, at 28. Other than his apparent difficulties in controlling

his anger, there is no record of a diagnosed mental health

problem. Under these circumstances, it is difficult to justify a

significant sentence reduction in order to avoid interrupting an
20 No. 16-2035

eight-week anger management class. Similarly, disruption of

employment is an ordinary consequence of incarceration, and

in Smith’s case, a consequence that he visited upon himself at

least five other times by engaging in misconduct at work.

These are thin rationales for a significantly below-guidelines

sentence, especially because these factors would apply to most

defendants.

The court’s fourth consideration in support of Smith’s

sentence was a comparison of the circumstances in similar,

instructive cases. In our first remand, we found that the court’s

attempts to distinguish Smith’s case from five similar caseswas

insufficient to justify the light sentence the court ordered for

Smith. Smith, 811 F.3d at 910–11. This time, the court addressed

two of the five cases that it previously discussed, going into

greater detail about the facts of those cases. The court found

that the officers’ conduct in United States v. Bartlett, 567 F.3d

901 (7th Cir. 2009), was far more egregious than Smith’s

conduct. But we agreed that the conduct in that case was more

abhorrent than Smith’s acts here, and the defendants there

were sentenced much more severely than Smith, with at least

one defendant in that case receiving a sentence of 208 months,

roughly fifteen times Smith’s sentence. 811 F.3d at 911. The

question we posed, though, remains unanswered: Were

Smith’s crimes so slight a fraction of theirs? The other cases,

including United States v. Christian, 342 F.3d 744 (7th Cir. 2003),

which the court discussed in more depth this time, similarly do

not reveal a basis for the extent of the discount that the judge

applied to Smith’s sentence. In short, nothing in the court’s

discussion of those cases justifies Smith’s sentence.
No. 16-2035 21

The government agrees that the fifth and final issue that the

court considered was an appropriate factor as a general matter:

rehabilitation. In Pepper v. United States, 562 U.S. 476, 480

(2011), the Supreme Court held that “when a defendant's

sentence has been set aside on appeal, a district court at

resentencing may consider evidence of the defendant's

postsentencing rehabilitation and that such evidence may, in

appropriate cases, support a downward variance from the

now-advisory Federal Sentencing Guidelines range.” On

release from prison, Smith reunited with his family, which

continues to support him. He once again became employed,

and began an anger management program. He completed his

sentence without conduct violations. These are laudable,

positive signs but Smith still has not admitted the conduct

underlying his conviction or expressed remorse for the harms

he caused. This relatively minor evidence of rehabilitation

must be assessed in light of Smith’s history and characteristics.

The government’s accounting of Smith’s appalling history

includes an attack on a three-year-old child that left the child

bruised and bleeding; an attack on that child’s mother when

she tried to intervene to protect the child; unprovoked,

premeditated beatings of two juveniles in custody followed by

lies about the incident in the official record; other abuses of

power over inmates at another facility; and the dishonest

behavior of clocking in at two jobs at the same time. At the first

sentencing, the court acknowledged that these prior incidents

brought to light by the government came in “uncontroverted.”
22 No. 16-2035

R. 93, at 33. Smith has not challenged the government’s 4

description of his history of violence and dishonesty. If there is

a rationale to support a sentence that is less than half the low

end of the guidelines, it is not apparent in the record here.

In light of these procedural errors, we must again vacate

the sentence and remand for full resentencing. There is no

reason to address the question of substantive reasonableness

at this juncture. As we noted in our prior opinion, a sentence

this far below the bottom of the guidelines range “need not be

unreasonable,” but “the farther down the judge goes the more

important it is that he give cogent reasons for rejecting the

thinking of the Sentencing Commission.” Smith, 811 F.3d at

910. Circuit Rule 36 shall apply on remand.

After characterizing the government’s account of Smith’s past as

4

“unconroverted,” (R. 93, at 33), the court then seemed to doubt (at both

sentencing hearings) the veracity of some of the most serious charges

against Smith, the beatings of two juveniles in custody. See R. 93, at 34 (“If

true, this incident would involve an assault upon two juveniles ...”); R. 135,

at 33 (“If true, this incident would involve an assault upon two juveniles

...”). The government presented the results of a Plainfield Juvenile

Correctional Facility internal affairs investigation into the incident, which

concluded that two counts of battery and one count of making a false report

had been substantiated against Smith. The incident was also investigated by

Indiana’s Family & Social Services Administration which concluded that

allegations of physical abuse by Smith against two detainees of the Juvenile

Correctional Facility had been substantiated. Although the investigations

resulted in a recommendation for prosecution of Smith, that recommendation was apparently set aside for unknown reasons and Smith was simply

terminated from his job. If there is a reason to doubt the veracity of the

government’s account of Smith’s history, the normal course would be to

hold a hearing before dismissing such serious allegations.
No. 16-2035 23

VACATED AND REMANDED.