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# United States Court of Appeals For the Seventh Circuit

No. 16-2035

U NI T E D S TAT E SOF A M E RI C A , Plaintiff-Appellant,

v.

T E R R Y J O E S MI TH

, Defen dant-Appellee.

Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the So uthern Distri ct o f Indi ana, Te rre Haute Divisi on. No. 2: 14 -cr- 00 00 6- WTL-C MM -1 — Will ia m T. Lawre nce , Judg e.

A RGU E D A PRI L 12, 2017

— D E C I D E D J UN E 19, 2017

Before P O S N E R

, R OVN E R

, and W I L L I AM S

, Circ uit Judges

. R OVN E R , Cir cui t Judge. A jury convic ted T err y Joe Smi th, a poli ce offi cer

, of violating 18 U.S.C. § 24 2 , by subjecting tw o
men to the intentional use of unreasonable and excessi v e force, and violating their ci vil right to be free of such abus e. The di strict co ur t sentenced Smi th to fourtee n months’ i mpri sonment, less than half the low end of t he a ppli cable gui delines range. In the fi rst appeal o f the case, w e affi rmed Smi th’s2 No. 16-2035
convic tion but v acated the sen t e nce and remanded for full resentencing, conclu ding that the court had fai led to justif y the below-gui delines sentence. United States v
. Smith , 811 F .3d 907 (7th Ci r
. 2016). On remand, the court again sentenced Smi th to fourtee n mo nths’ i mpri sonment and once more fai led to adequately explain or j us t ify the below-gui delines sentence. W e again v acate and remand for a complete r e-sentencing. I. Smi th w as a poli ce offi cer employ ed by the Putnam County Sher i ff’s Department. In tw o separate inci dents, Smi th violently assau lted arr estees who w ere already under contro l and not acti v ely r esi sting arr est. At tr i al, Smi th’s fellow poli ce offi cers testifi ed again st hi m, descri bing the unw arr anted attacks. In the fi rst inci dent, Smi th punched the arr estee in the face wi th a closed fi st, caus ing bleeding and swelling on hi s face. T w o offi cers testifi ed that the blow made the sound of a tomat o hi tting a co nc r e t e w all. At the tim e, the arr estee w as fully un der the contro l of four other offi cers, and the arr estee posed no danger to Smi th. A fellow offi cer testifi ed that he had been t rained to refrain fro m str i kin g any one in t he he a d wi th

a closed fi st unles s he w as in a “deadly force” si tuation becau se
such a blow could be lethal. After that inci dent, Smi th bragg ed abo ut his behavi or to other offi cers and mocked those who objecte d to hi s unjusti fi ed attack. Th e a rr estee had to be removed fro m the scen e in an amb ulanc e. Sev eral months later

, in the second attack, Smi th and other offi cers arr ested an intox i cated ma n a ccu sed of batter ing a
w oman during a domesti c di spute. Smi th led the handcuffed

arr e st e e to a patro l car
. On reaching the car , Smi th rais ed theNo. 16-2035 3

man into the ai r

, threw hi m face- fi rst on t o the gr ound and drove hi s kn e e int o the man’s back wi th such force that the

man defecated on hi mself

. Th e ma n suffered injuries to hi s 1 back and rib s. Smi th later bragg ed that thi s w as not the fi rst tim e he h ad made someone defecate on hi mself

. Again, Smi th’s fellow offi cers testif ie d t hat the arr estee w as not acti v ely resi sting in any manner and t hat the use of for ce w as unjustifi ed and excess i v e. Smi th’s gui delines range w as thi rt y -three to forty-one months’ i mpri sonment. Smi th w as in Criminal Hi stor y Categ or y I, based on one prior convic tion for mi sdem e a no r batter y of a three -y ear -old chi ld and the chi ld’s mother , who

w as then Smi th’s wi fe. The tr i al judge beg an the fi rst s entencing hearin g by consi dering the nature and ci rcums tances of the of fenses of convic tion, noting only that he w ould rely on hi s memory of the tr i al and paragr aphs four thro ugh sev en of the presentence inv esti gation repo rt

. The c ou rt n ote d di ffi culti es in Smi th’s chi ldhood. Hi s y oung, tr oubled p arents w ere unabl e to
care for hi m but all four gr andparents stepped in to rais e hi m. Hi s sister w as kill ed by a drunk driv er , leading Smi th to partici pate in “vic tim i mpact panels” wi th the non-profi t
or g a nizat i on Mot hers Agains t Drunk Dri ving. The court credi ted hi s w or k hi stor y , describing Smi th as “ind eed a person who does not shy aw ay from w or k.” R. 93, at 30. Smi th ha d a l so serv ed as an elected publi c offi ci al and a v olunteer coach in loc a l leagues and sch ools. He had the supp or t of hi s
commu ni ty and fami ly

, inclu ding hi s surviving gr andparents,

Smith i s six fee t three inches ta l l and, a t the ti me of his pro b atio n repo rt, 1 wei ghed 27 0 p ounds.4 No. 16-2035
and his fourth wi fe. He had custody of hisson and g uardi anshi p of the daughter of a frien d who w as incarcerated. On the other hand, S mi th had no t take n r e sp o nsi bi li ty for hi s actions, had “unaddress ed anger cont ro l i ssu es,” and had engaged in other mi scondu ct that had not resulted in cri minal charges

. R

. 93, at 33. In particu lar , he had assau lted tw o juv eni les at a faci li ty where he w a s w o r k ing as a corr ecti onal offi cer , and then li ed to cov er up hi s condu ct. At a di fferent facil it y , he had removed an inmate from the jail, supp li ed tobacco products to that inmate, and i mproper ly recor ded the

conv ersations of other inmates. He had also engaged in “ghost employment.” The court rema rk e d th a t, i f Sm i th a ddressed hi s 2 anger contro l i ssu es, hi s ris k of re-offending w as “sli ght.” R. 93, at 34. Noting that there w as no excuse for punching or abus ing persons who are h an d cu ffed, the court compared the sentences of other offi cers who had been convic ted of engaging in si mi lar conduc t. The di stric t court then sentenced Smi th to a fourtee nmonth ter m, less than ha l f the bott om end of the gui delines range. In explaining the below-gui delines sentence, the court

There i s some i ro ny in the c our t cred i ting S mith as someo ne who “ do es 2 not shy away fro m work” given tha t Smi th was f i r ed fro m the Putna m C ounty Sheriff’ s Department fo r mistreati ng pri soners and giving an inm a te tobacco; fi red fro m the Plai nf i el d Juvenil e Co rrecti onal Facil i ty where he

ass aulted two juvenil es and falsi fi ed repo rts; fi red fro m a jo b with Putna m Co unty and fro m a pri v ate empl oyer fo r cl ocki ng i n at b oth of those jo b s at the sam e time (t he “ g ho st empl oyment” i ncid ent); and f i nall y fi red aga i n b y the Putna m Co unty S heri ff fo r the unlawful conduc t at the co re o f thi s
case. Al though Smi th do es “no t shy away fro m work,” he also do es not shy

away fro m i nappropri ate and unlawful cond u c t at work, l osi ng fi v e separate jo b s b ecause ofhis b ehav i or
.No. 16-2035 5
sai d only , “Thi s sentence i s a downw ard v arianc e based upon the h i stor y and characteris tic s that Mr

. Smi th p resents as w ell as the nature and ci rcums tances of thi s offens e.” R. 93, at 38. Smi th ap pealed hi s convic tion, and the gov ernment c ro ssappealed hi s sentence. W e affi rmed the convic tion but v acated and remanded for a complete re-sentencing. Smith , 811 F .3d at 909–10. W

e noted t hat, although a sentence that lo w need not be unreasonable, the farther a judge stray s from the gui delines range, “the more i mport ant i t i s that he giv e cogent reasons for rej ecting the thinking of the Sente ncing Commi ssi on.” 811 F .3d at 910. W

e too k i ssu e with the court’s conclu si on that Smi th

w as unli kely to re-offend i f he addressed hi s a ng e r management i ssu es. Nothing in the recor d described t he anger management prog ram that Smi th was required to undergo as

a condi tion of super v ise d release and there w as reason to questi on the effi cacy of such an undefined prog ram in li ght of Smi th’s his t or y of violence and bi zarr e conduc t tow ards the vic tim s of hi s offens es of convi cti on. As for the di stric t cour t’s efforts to compare Smi th’s offenses to those in o ther cases, we noted that in t he major i ty of the cases, t he conduc t w as ei ther si mi lar to or not as egr egious as Smit h’s cri mes and y et the sentences w ere much hi gher t han the sentence m eted o ut to Smi th: Apart fr o m the judge’ s r eference to anger management and comments on Smi th’s minor g ood w or ks in the commu ni ty

, no reason fo r the li ght sentence he i mposed can be found in the tr ansc ript of the sentencing hearing.6 No. 16-2035
811 F

. 3 d at 911. W

e there fore v acated and remanded for resentencing. Coinc i dentally

, Smi th w as released from pris on on the day

our opini on i ssu ed. By t he tim e he came to the court for resentencing, there w as only sli ghtly more information for the court to consi der in set t ing hi s sentence. A large part of the second sentencing tr ansc ript tr acks the fi rst, virtually w or d for

w or d. Sinc e the fi rst sentencing, Smi th had ser v ed hi s t i me in pris on wi thout conduct v i olations. He completed fourtee n hours of educati onal prog ramming and w or ked in pris on in plumb ing and as a compound or derly

. After hi s release and befo re resentencing, he secu red employment, fi rst as a car salesm an and then as finance manager at the same dealershi p. He had pai d hi s fine in full as w ell as t he speci al asses sment i mpo sed at the fi rst sentencing. He w as enrolled in an ei ghtw eek anger manag ement clas s, and w as li ving wi th hi s wi fe,

son and w ard. Hi s probat i on offi cer repo rt ed that Smi th told her that he “had tim e to think about the vic tim s of hi s offenses, and he i s tak ing o wn ershi p of hi s acti ons. He i s prepar ing a lette r t o the Co urt addr essing thistopic.” R. 127, at 5. Smi th di d make a state me nt a t hi s second sentencing hearin g but i t i s di ffi cult to find menti on of hi s vic tim s or much

o f a se ns e of ownershi p of hi s acti ons in hi s remark s. W e repr oduce in ful l the lett er he r ead aloud: Y our Honor

, as y ou may know

, i t i s v ery dangero us being an ex-polic e offi cer in pris on; but y et, there are li ttle to no secrets in pris on. Most inmat e s k no w why y ou are there before they ev en ask y ou. I had guys that hated me, not for being me but for my ex-No. 16-2035 7 professi on. I made i t clear I w as no longer a sheri ff’s deputy , and I w as an inm a te just li ke them; and I

w as there t o bett er myself, just as they w ere. As I too k clas ses, w or ked, pray ed and w ent to chu rch next to these inmates, I learned that not all but most o f t hem w ere just li ke me, people who made mi s ta ke s and w ere tr yin g to better themselv es. I wi tnessed guys get tin g GEDs, furthermo re, get tin g tr ades in plumbing, heatin g and coolin g, sewing,
mus i c and m any ot her skill s. Many of these inmat es had nev er once been in tr ouble whi le being incarcerated. They w ere ro le model inmates and doin g ev ery thing they could t o better themselv es. One guy in p a rti cular named P aul

w as sentenced to 15 y ears. He spent most of hi s fi v e y ears learnin g how to read and wri te. He fin a l l y obtained hi s GED. He then too k the next y ear enrolling in a heatin g and coolin g clas s where he completed i t in four y ears. He had nev er been di sci plined, y et, had sev eral y ears to just si t and w ai t for hi s sentence to run out. He w as just si tting there

w ai tin g for hi s out date. Why do I tell y ou thi s? I tell y ou thi s becau se y ou made the ri ght deci si on when i t came to sentencing me. I w ant to be an example to o ther j udges, prosecutors that not ev ery man that makes a mi stake needs a long sentence and that when y ou hav e done

ev ery thing to bet t er y ourself and when y ou hav e y ears left to serv e – to si t and w ai t for y our sentence8 No. 16-2035

to run out and the only thing y ou’re w ai tin g for i s an out date, i t i s t he fami ly , chi ldren and commun i ties that ar e serving the sentence.
I don’t stand before y ou and say that I ha v e a for

mula to fi x the sentencing. I ju st—I hav e been on both si des; and whi le I once w ould say lock them up and t hr o w a w ay the key , I now say I w as uneducated and so wrong. Whi le being incarcerated, I met doctor s, poli tic i ans, p i lots, cooks and ev en drug dealers. I now kno w that each case i s speci al in i ts own w ay , and not
e ver y one needs such a long sentence. I mus t say of all people, y ou understand that.
I can say that becau se of the sentence you handed

me. Y ou knew exactly what I needed to get back on tr ack and I thank y ou. I hope my acti ons during and after my incarceration hav e v ali dated y our sentencing choi ce for me. I thank y ou for the oppor tuni ty y ou’v e giv en me. Thank y ou. R. 135, at 12–14. Despi te t he lack of any menti on of hi s vic tim s in the statement that w as to explain his ne w-found “ownershi p” of hi s acti ons, the di stric t c ourt found i t “te lling” that Smi th was
now refer ring to hi s vic tim s as vic tim s when speak ing to hi s probat i on offi cer
. R. 135, a t 31. The court then menti oned g uideline secti on 3E1.1(a), whi ch allows for a reducti on in offense lev el for defendants who hav e accepted responsibi li ty for their cri mes. Noting that nei ther si de propo sed or d i s cu s s e dNo. 16-2035 9

a tw o-lev el reducti on, the courtnev ert heless remark ed that it

w as aw are of the reducti on as Smi th appeared “to now be accepting responsibi li ty for” hi s acti ons. R. 135, at 31. The court rej e ct e d Smi th’s arg ument that the deter rent effect of a sentence of i mpri sonment i s specu lativ e, and noted that Sm i th may continue t o hav e “unaddress ed anger contro l i ssu es,” as evidenc ed by hi s convic tion for ba t t e ring a three -y ear -old chi ld. R. 135, at 32. The court menti oned Smi th’s o t he r t r o ubling a cts that the government had again described, acts for whi ch Smi th suffered li ttle or no consequen ces. Noting Smi th’s lack of conduc t violati ons and hi s efforts tow ard educati on and

w or k in pris on, the court sai d that Smi th’s incarceration “may indeed hav e been helpfu l,” and that Smi th “probably [had] shown insi ghtfulness in reg ards to the incarceration that [he]

sus tained.” R. 135, at 34. The court found that Smi th’ s e nr ollment in an ei ght-w eek anger manag e me nt prog ram w as a “goo d start ” tha t w o ul d be helpfu l going forw ard. The court recommended that the prog ram di recto r ev aluate Smi th at the end of that prog ram, that the asses sment be shar e d wit h hi s probat i on offi cer an d that Smi th should w or k wi th the probation offi cer for fo llow-up couns eling. R. 135, at 34–35. The court then di scu ssed the need to av oid unw arr anted sentencing di spari ties, di scu ssing again some of the same cases i t had consi dered at the fi rst sentencing but goin g int o more detail on the facts of each. In particu lar , the court consi dered United States v
. Christian , 342 F .3d 744 (7th Ci r
. 2003). The court di stingui shed Christian on the g ro und that the offi cer was not invo l ved in an arr est si tuation at the tim e he attacke d an
arr estee. The court w as al so reluctant to compare the cases becau se the court di d not know Chris t ia n’ s backgro und. The10 No. 16-2035
court also addre ssed United States v. Bartlett , 567 F .3d 901 (7th Ci r
. 2009), a case that the court found inv olv ed conduc t far bey ond what Smi th had done. The court then sent enced Smi th once again to a ter m of fourtee n months’ i mpri sonment, and tw o y ears of supervis ed release, giving hi m credi t for the tim e already serv ed in pris on. The court note d: Thi s sentence i s a departur e based up o n Section 5K2.1, as w ell as a v arianc e based upon the hi stor y and ci rcums tances of thi s defendant as w ell as the nature and ci rcums tances of thi s offens e. I do not see any benefi t in reinc arcerat ing Mr

. Smi th. Hi s anger contro l couns eling w ould be interr upted. He wi ll lose hi s jo b again

. He wi ll al so d isr upt the stability of hi s chi ldren, whom I assu me hav e now adopted [si c] to havin g hi m bac k inthe home. R. 135, at 44. In addressing the need to promo te respect for the law and deter other s from commi tting si mi lar cri mes, the court
m e nti one d that Smi th had incu rr ed tw o felony convic tions, l os t hi s j o b a s a poli ce offi cer , resi gned hi s posi tion on the ci ty
counc i l, and lost hi s reputat i on wi thin the commu ni ty

. The 3 government objecte d to the sentence on gr ounds of procedural and sub stanti v e unreasonablenes s, and has once again appealed from the sentence.

Lo sing one’s jo b and reputatio n are the normal consequences of commi t- 3 ting a fel ony at work. It i s uncle ar how these naturall y occ urri ng reper cussio ns tha t are not part of any sentence woul d pro mote respect fo r the l aw and deter others fro m commi tting si mil ar cri mes.No. 16-2035 11
II. On ap peal, the government contends that the court procedurally err ed by fai ling to adequately explain why Smi th receiv ed a consi derably bel o w-gui delines sentence, and by credit ing Smi th for acceptanc e of responsibi li ty

. The government also argues that the sentence is sub stanti v ely unreasonable in li ght of the court’s fai lure to justif y i t and becau se i t creates an unw arr anted di spari ty in compari son to simi lar

c a ses nati onwi de. Our rev i ew of sentencing deci si ons i s l im i te d to wh ether they are reasonable, applying the abus e of di scretion standard. Gall v
. United States , 552 U.S. 38, 46 (2007); United States v

. McLaughlin , 7 6 0 F .3d 699, 703 (7th Ci r
. 2014). W e fi rst
mus t ensure that the di stric t court commi tte d no si gnific a nt procedural err or

, such as incorre ctly calculating the gui delines range, fai ling to consi der t he secti on 3553(a) factor s, selectin g
a sentence based on clearly err oneous facts, or fai ling to explain adequately the chosen sent e nce. Gall , 552 U.S. at 51. Whether the d i s tr i c t c ou rt fol l ow ed the proper procedures after United States v
. Boo ker

, 543 U.S. 220 (2005), in i mposing sentence i s a questi on of law we rev i ew de novo
. United States v
. Mendoza, 510 F .3d 749, 754 (7th Ci r . 2007). If the sentencing deci si on is p ro cedurally sound, w e then consi der the sub stanti v e reasonableness of the sentence under the abus e-of-di screti on standar d , taking into accoun t the tot a li ty of the ci rcums tances, inclu ding the ext ent of any
v arianc e from the gui delines range. Id

. Mor eov er , the Supreme Courtfound that i t is :

unc ont r o versi al that a major departur e should be supp or ted by a more signi fi cant justi fi cati on than a12 No. 16-2035
minor one. After settlin g on the a p p r o p riate sentence, [the judge] mu st adequately explain the chosen se nt ence to allow for meaningful appellate

rev i ew and to promo te the perception of fai r se ntencing. Gall , 552 U.S. at 50. See also United States v
. W arner , 792 F .3d 847, 855 (7th Ci r
. 2015) (notin g that secti on 3553(c) requires the di stric t judge to state in open court the reasons for i mposing a particu lar sentence). The parties agr ee that the di stric t court corr ectly calculated the gui delines range, whi ch w as thi rt y-thre e t o fo rt y-one months. See Gall , 552 U.S. at 49 (a di stric t court should begin all sentencing proceedings by corr ectly calculating the appli cable g uidelines range). The di stric t court then sub stanti ally d e parte d from the gui delines range, giving Smi th a sentence that i s less t ha n ha lf of the bott om of the range. When a judge deci des to sentence outsi de the gui delines range, he or she “mus t consi der the ext ent of the deviati on and ensure that the justifi cati on i s suffi ci ently compelling to supp or t the degr ee of the v arianc e.” Id. W e agr ee wi th the g ov ernment thatthe courterr ed procedurally by fai ling to adequately explain or justif y t he si gni fi

cantly below-gui delines sentence that i t render ed. In justif yin g the sentence here, the court ci ted: (1) gui delines secti on 5K2.1; (2) the hi stor y and characteris tic s of the defendant; and (3) the nature and ci rcums tan ce s o f the offense. W e assu me that the refer ence to gui delines secti on 5K2.1 w as ei ther a typo gr aphi

cal err or or a si mple mi sstatement. Section 5K2.1 allows a court to inc r e a se a sentence abov e the gui delines range i f deathNo. 16-2035 13
resulted. Pr esum ably

, the court meant to refer to gui delines secti on 5K2.10, whi ch the p r o bati on offi cer had ci ted in her recommendati on for setting S mit h’ s sentence. That prov i si on allows a court to reduce a sentence below the gui delines range i f “the vic tim 's wrongful co nduct contribu ted si gni fi cantly to provoking the offe ns e behav i or .” U.S.S .G. § 5K2.10. But the di stric t court made no finding that ei ther of Smi th’s vic tim s di d anythin g to provoke Smi th’s attacks. Mor eov er , the probat i on of fic e r offered no evidenc e of provocati on in the presentence inv esti gation repo rt and Smi th ci tes no evidenc e that supp or ts
a conclu si on that the vic tim s provoked hi s attacks. Nor di d the court consi der the factors set fort h in t he g ui delines poli cy statement, such as the relat i v e si ze a nd st rengt h o f t he vic tim compared to the defendant, the persi stence o f the vic tim ’s conduc t, efforts by the defendant to prev ent the confrontat i on, and the propo rt i onali ty and reasonableness of the defendant’s respons e t o the vic tim ’s provocati on, among other things. Nothing in the sentencing tr ansc ript or presentence inv esti gation repo rt w ould w arr ant appli cati on of secti on 5K2.10 in these ci rcums tances. Because t he re w as no di scu ssi on of g uid e l ine 5K2.10 (except for the bri ef, err oneous refer ence t o secti on 5K2.1), w e cannot be sure i f the court meant to use i t to justif y the r e ducti on in Smi th’s sentence. Becaus e w e are remanding for resentencing, w e no t e t hat, i f the court in fact relied on secti on 5K2.10, nothin g in the recor d a s i t stands justifi es appli cati on of thatprov i si on. The sentencing judge also inv oke d the n ature and ci rcumstances of the offense as a reason to sentence be l o w t he gui delines. But t he judge’ s only menti on of the nature and ci rcums tances of the offense came when he sai d that he w ould14 No. 16-2035 rely on hi s memory of the tr ia l and certain paragr aphs of the presentence inv esti gation repo rt for hi s consi derat i on of thi s factor

. A rev i ew of the ci te d paragr aphs of the presentence inv esti gation repo rt as w ell as the tr i al tr ansc ript shows that Smi th twi ce violently attacke d arr estees who w ere al r e a dy under contro l and w e r e not acti v ely resi sting arr est. These

w ere typical excessi v e-force cri me s. No mi tigating ci rcumstances are apparent from the recor d and the court ci ted none. See e.g. , W

arner, 792 F .3d at 859 (notin g as mi tigating factors for the nature and ci rcums tances of an offense that the defendant’s cri me w as i solated and un ch a ra c te ri s ti c, that the defendant w as
e l derly and had no prior cri minal hi stor y , that he posed no danger to soci ety

, and that he atte mpted to come forw ard and

rec t i fy hi s crime before he knew that he w as under inv esti gation). In fact, a court mi ght consi der i t an aggr av atin g fa ct or that Smi th w as convic ted of tw o counts of exce ss ive force aris ing from separ a t e inci dents, each in ci rcums tances that could not be explained by the heat o f the moment. Mo reo v er , he later bragg ed about hi s behavi or and mocked his fe l low offi cers when they questi oned hi s acti ons. Befo re w e can
co nc lude that a court di d not abus e i ts di screti on, we hav e to sati sfy ourselv es that the court exer ci sed i ts di screti on, that i s, that the court consi dered the fact o rs relev ant to that exer ci se. Unit e d S ta tes v
. Cun nin gham , 429 F .3d 673, 679 (7th Ci r
. 2005). The court’s bri ef menti on of the nature and ci rcumst a nces of the offense affords no basi s to rev i ew that exer ci se of di scretion. W e turn to the hi stor y and characteris tic s of the defendant. The government fi rst asserts that the court commi tte d procedural err or in credi tin g Smi th for acceptanc e of responsibi li ty

.No. 16-2035 15
Section 3E1.1(a) of the gui delines prov i des, “I f t he defendant clearly demonstrate s acceptanc e of responsi bi li ty fo r hi s offense, decrease the offense lev el by 2 lev els.” The prov i si on gener ally appli es to defendant s wh o tr uthfull y admi t the conduc t compris ing the o ffens e of convic tion: Thi s adjustment i s not intended to apply to a defendant who puts the government to i ts burde n of proo f at tr i al by d e ny ing the essenti al factual elements of gui lt, i s convic ted, and only then admits gui lt and expr esses remor se. Convicti on by tr i al, how e ver , does not automatic ally preclude a defendant from consi derat i on for such a reducti on. In rar e si tuations a defendant may cl e arly demonstrate an acceptanc e of responsi

bi li ty for hi s cri minal conduc t
ev en though he exe r cises his consti tutional r i ght to
a tr i al. Thi s may occur

, for example, where a defendant goe s to tr i al to assert and pr e se r ve i ssu es that do not relat e to factual gui lt ( e.g. , to make a consti tutional challen ge to a statute or a ch a l l e nge to the appli cabi li ty of a statute to hi s conduc t). In each such instance, how ev er

, a deter minati on that a defendant has accepted responsibi li ty will be based prim arily upon pre-tr i al statements and condu ct. U.S.S .G. § 3E1. 1 , Commentary , Appli cati on Notes 1 & 2. It i s clear from thi s language that Smi th i s not the type of defendant for whom the g uid e line w as drafted. Smi th has nev er tr uthfully admi tte d the conduc t compri sing the offense of conv iction. Mor eov er

, Smi th put the government to i ts burden of proo f at tr i al, deni ed the essenti al factual elements of gui lt, w as convic ted, and serv ed a period o f incarceration before ev er16 No. 16-2035

utter ing any w or ds that could be co nstrued as remor sefu l. Ev en a defendant who pleads gui lty i s not entitled to an adjustment for acceptanc e of responsibi li ty as a matter of right. U.S.S .G. § 3E1.1, Commentary , A p p l icati on Note 3; United States v
. Boo ker

, 248 F .3d 683, 690 (7th Ci r
. 2001). Rather , the defendant bears the burden of demonstrating to the di stric t court that he accepts moral responsibi li ty for hi s offense and i s entit l e d t o a reducti on. United States v
. DeLeon , 603 F .3d 397, 408 (7th Ci r . 2010); Boo ker , 248 F .3d at 690. The di stric t court di d not formally apply the tw o- lev el gui deline reducti on, instead noting o nl y that the court w as
aw are of the gui deline and that Smi th a p peared now to be accepting r e sp onsi

bi li ty

. Presumab ly

, then, the court meant that i t w ould take Smi th’s purpor ted acceptanc e of responsibi li ty into accoun t not as a gui delines facto r bu t r a t her as a statutory m a tte r un d e r s e c ti on 3553(a). The government asserts that i t w ould be i mproper to i mport into the 3553(a) analysi s a consi derat i on that the gui d e l ines expr essly ex clud e. But after Uni te d States v

. Boo ker

, 543 U.S. 220 (2005), a sentencing judge has the di screti on to di sagree wi th a particu lar prov i si on of the gui delines and to i mpose a non-gui delines sentence that, in hi s
or her judgment, i s more consi stent wi th the statuto ry sentencing factors set out in secti on 3553(a). Kimbrough v
. United States , 552 U.S. 85 (2007); United States v
. Rosales , 813 F .3d 634, 637 (7th Ci r . 2016). In prin ci ple, there fore, a court could di sagree wit h the p ro vis i ons set fort h in gui deline secti on 3E1.1 and ins t e a d

a cc o unt for remor se as part of the secti on 3553(a) factors. I n practic e, though, there are tw o problems with t he co ur t ’s useNo. 16-2035 17
of Smi th’s remor se to reduce his sentence. First, i t i s entirely

un cl ear from the recor d whether the court meant to do what

w e hav e just proposed. That i s, i t i s unc lear whether the court actually di sagreed wi th the pr ov i si ons of gui deline 3E1.1 and meant to ov err i de the gui deline wi th i ts own analysi s. Second, and more i mport ant ly , the recor d i s dev oid of any actual expr essi on of acceptanc e of responsibi li ty or remor se b y Smi th. At most, S mi th told hi s probat i on offi cer that he w as ready t o “take ownershi p” of hi s crimes, and w ould wri te a lette r expounding on that ownershi p to the court

. He also began to refer to hi s vic tim s as vic t ims. But Smi th’s statement to the court contained, at most, an acknowledgment that some—but not all—of hi s fellow pris oners w ere people li ke hi m, who had made mi stakes and w ere seeking to better themselv es. He also

e xp re s s e d hi s new-found beli ef that not all defendants re qu i re d lengthy sentences, a prin ci ple he hoped the court w ould apply to hi m. He nev er me nt i oned hi s vic tim s or hi s cri mes unles s one generously infers that the “mi stake” to whi ch he refer red

w as sens elessly beating a rr estees who w ere already under contro l and posed no danger to hi m. He d i d not concede the facts of hi s offenses of convic tion and he di d not expr ess reg ret for anythin g other than the length of a possi ble new sentence. It i s certainly admi rable that he learned in pris on that pris oners
are human beings li ke hi mself , but that i s a far cry from an expr essi on of remor se for t he harms he caus ed or acceptanc e of responsibi li ty for hi s cri mes. There i s nothin g resembling the promis ed “ownershi p” in Smi th’s remark s to the court. Becaus e t he r ecord does not rev eal ei ther a factual or a legal basi s to supp or t the reducti on, i t w as procedural err or to reduce Smi th’s sentence for acceptanc e of responsibi li ty

.18 No. 16-2035
As for the remaining consi derat i ons relev ant to the hi stor y and characte r ist ics of the defendant, we noted in the fi rst appeal that the jud g e ha d offered “no reason for the li ght sentence” i mposed apart from a r e fe rence to anger management and Smi th’s minor goo d w or ks in the commu ni ty

. Smith , 811 F .3d at 911. The government poin ts out that li ttle changed betw een the fi rst and second sentencing proceedings, ci tin g fi v e addi tional consi derat i ons the court used to ju st ify the sentence. The government contends that only one w as proper and that it w as inadequate to j usti fy the sentence. First, t he court again refer red to the benefi ts of an anger management course in reducing Smi th’s ris k of r e -o ffending. At the tim e of resentencing, Smi th had start ed an e ig ht-w eek clas s, whi ch the court called a “goo d start .” No doubt the clas s
w as a goo d start but the court di d not address the essenc e of

our concern, namely

, whether such a prog ram w ould in fact be effecti v e in Smi th’s case, especi ally in li ght of hi s ext en siv e hi stor y of violence again st vulnerable persons and hi s bi zarr e conduc t again st the vic tim s here. Smith , 811 F .3d at 910. It may be tr ue that Smi th i s unli kely to re-offend i f he learns to contro l hi s anger
. But in li ght of hi s prior conduc t a nd t he lack of evidenc e that the contemplated prog ram w ould effecti v ely resolv e hi s anger i ssu es, there i s no basi s in t he recor d as i t stands to reduce Smi th’s sentence on the gr ou nd that he i s unli kely t o r e-offend. W e hav e already consi dered and rej ected the second factor

on whi ch the court relied in di sco un tin g Smi th’s sentence, whether he had accepted respo ns ibi li ty for hi s crimes

. As t he thi rd consi derat i on, the court ci ted the di srupti on to Smi th’s li fe, inclu ding the burden on hi s fami ly , the loss of hi s jo b andNo. 16-2035 19
the interr upti on of hi s anger management prog ram. But in
s e nte n c in g a d efendant, “fami ly ties and responsi bi li ti e s a re n ot
or d in arily relev ant in deter mining whether a departur e m a y b e
w arr anted.” U.S.S .G. § 5H1.6. M i tigati on arg uments th a t rely

on the effects of incarceration on the defendant’s chi ldren mus t i denti fy consequ e nc e s that go bey ond those that any chi ld

w ould suffer when a parent i s i mpriso ned. United States v
. Gary, 613 F .3d 706, 710 (7th Ci r
. 2010). Extr aor dinary fa mil y ci rcums tances may consti tute a legiti mate basi s for i mposing a below-gui delines sent e nce, under ei ther gui delines pr ov i si on 5H1.6 or under secti on 3553(a ). United States v
. Schroeder , 536 F .3d 746, 755–56 (7th Ci r
. 2008). But the co ur t ci ted nothin g
unus ual in Smi th’s fami ly ci rcums tances such as loss of caretaking or financi al suppor t that exceeds the harm or dinarily inci dent to incarceration for a si mi larly si tuated defendant. See U.S.S .G. § 5H1.6, Commentary , Appli cati on Not e 1(B). The court a l so d e clined to sentence Smi th to further inca r ce rat i on becau se an addi tional ter m of i mpri sonment
w ould interr upt hi s anger management clas s. Although the gu ide lines prov i de that a downw ard departur e may be appropr i ate to accompli sh a speci fi c tr eatment purpose i f the defendant suffers from a mental or e motional condi tion, the court found that S mit h ha s no hi stor y of mental health problems, n o alcohol or sub stance abu se problems, w as not under the care of a physi ci an and w as not taking any medi cati ons. See U.S.S .G. §§ 5C1.1, Commentary , Appli cati on Note 6 and 5H1.3; R. 135, at 28. Other than hi s apparent di ffi culti es in contro lling hi s ang e r

, there i s no recor d of a di agnosed mental health p r oblem. Under these ci rcums tances, i t i s di ffi cult to justif y a si gni fi cant sentence reducti on in or der to av oid interr upting an20 No. 16-2035
ei ght-week anger management clas s. Sim i larly , di srupti o n of employment i s an or dinary consequen ce of incarceration, and in Smi th’s case, a consequen ce that he visi ted upon hi mself at least fi v e other tim es by engagin g in mi scondu ct at w or k. These are thin rat i onales fo r a si gni fi cantly below-gui delines sentence, especi ally becau se these factors w ould apply to most defendants. The court ’ s fo urth consi derat i on in supp or t of Smi th’s sent e nc e w as a compari son of the ci rcums tances in si mi lar , instructi v e cases
. In our fi rst remand, w e found that the court’s atte mpts to di stingui sh Smi th’s case from fiv e si mi lar cases w as insu ffi ci ent to j us t ify the li ght sentence the court or dered for Smi th. Smith , 811 F .3d at 910–11. Thi s tim e, the court addressed tw o of the fi v e cases that i t prev i ously disc ussed, going into gr eater detail about the facts of those cases
. The co urt found that the offi cers’ conduc t in Unite d S ta te s v
. Bartlett , 567 F .3d 901 (7th Ci r
. 2009), w as far more e g reg i ous than Smi th’s conduc t. But w e agr eed that the conduc t in that case w as more abhorr ent tha n S mit h’s acts here, and the defendants there

w ere sentenced much more sev erely than Smi th, wi th at least

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

r o ug hl y fi fteen tim es Smi th’s sentence. 811 F .3d at 911. The questi on we posed, though, remain s unans w er e d : W ere Smi th’s cri mes so sli ght a fracti on of theirs? The oth e r cases, inclu ding United States v
. Christian , 342 F .3d 744 (7th Ci r
. 2003), whi ch the court di scu ssed in more depth thi s tim e, si mi larly do not rev eal a basi s for the ext ent of the dis count that the judge appli ed to Smi th’s sentence. In short, nothin g in the court’s di scu ssi on of tho se cas es justi fi es Smi th’s sentence.No. 16-2035 21
The government agr ees that the fi fth and final i ssu e that the court consi dered w as an appropr i ate factor as a gener al matter : rehabi li tation. In Pepper v
. United States , 562 U.S. 4 7 6, 480 (2011), the Supreme Court held that “when a defendant's sentence has been set asi de on appeal, a di stric t court a t resentencing may consi der evidenc e of t he defendant's postsentencing rehabi li tation and tha t such evidenc e may , in appropr i ate cases , supp or t a downw ard v arianc e from the now-advi sory Fe d e r al Sente ncing Gui delines range.” On release from pris on, Smi th reuni ted wi th hi s fami ly , whi ch continues to suppo rt hi m. He once again becam e employ ed, and began an anger management prog ram. H e completed hi s sentence wi thout conduc t violati ons. These are laudabl e, posi tiv e si gns but Smi th sti l l has not admi tte d the conduc t underlyin g hi s convic tion or expr essed remor se for the harms he caus ed. Thi s relat i v ely minor evidenc e of rehabi li tation
mus t be asses sed in li ght of Smi th’s hi stor y and characteris tic s. The government’s accoun tin g of Smi th’s appalling hi stor y inclu des a n a t t a ck on a three -y ear -old chi ld that left the chi ld brui sed a nd bl eeding; an attack on that chi ld’s mother when she tr i ed to intervene to prot ect the chi ld; unprov oke d, premedi tate d beatings of tw o juv eni les in cus tody followed by li es about the inci dent in the offi ci al recor d; other abus e s o f pow er ov er inmates at another faci l it y; and the di shonest behavi or of clocking in at tw o jo bs at the same tim e. At the fi rst sentencing, the court acknowledged that these prior inci dents brought to li ght by the government came in “unc ontr ov ert ed.”22 No. 16-2035
R. 93, at 33. Smi t h has not challen ged the government’s

4 descri ption of hi s hi stor y of violence and di shonesty

. If there i s
a rat i onale to supp or t a sentence t hat i s less t han half the low end of the guid elines, i t isnot appar ent inthe re cord here

. In li ght of these proced ur a l e r ro rs, w e mus t again v acate the sent e nc e and remand for full resentencing. There i s no
reason to address the ques t i on of sub stanti v e reasonableness at thi s juncture. As w e noted in our prior o p ini on, a sentence thi s far below the bott om of the gui delines range “need not be unreasonable,” but “the farther down the judge goe s the more i mport ant i t i s that he giv e cogent reasons for rej ecting the thinking of the Sente ncing Commi ssi on.” Smith , 811 F .3d at 910. Ci rcui t Rule 36 shall apply on remand.

Afte r chara cteri zing the government’s account of Smi th’s past as 4 “unco nroverted, ” (R. 93 , at 33 ), the cour t then seemed to do ub t (at b oth sentencing hearings) the v eraci ty of some of the most seri ous charges aga i nst Smi th, the b eatings oftw o juvenil es in custody. SeeR . 93, at 34 (“If true, this i ncid ent woul d i nv ol v e an ass ault upon two juvenil es ...”) ; R. 13 5, at 33 (“ If true, this i ncid ent woul d i nv ol v e an ass ault upon two j u v enil es ...”)

. The government presented the resul ts of a Plai nfi el d Juvenil e Co rrecti onal Facil i ty i nternal a ffai rs inv esti gation i nto the i ncid ent, which concl uded tha t two counts of b attery and one count of maki ng a false repo rt had b een sub stantiated aga i nst Smi th. The i ncid ent was also i nv esti gated b y Indi ana ’s Fam i l y & So ci al Ser v i ces Admi nistratio n which concl uded t ha t all egatio ns of physical ab use b y Smi th aga i nst two detainee s of the Juvenil e Co rrecti onal Facil i ty had been sub stant i ated

. Al though the i nv esti gations resul ted i n a reco mmenda tio n fo r pro secuti on of Smi th, tha t reco mmenda

tio n wasa pparently set aside fo r unknown reasons and Smith wass i mply termi nat ed fro m his jo b

. If there i s a reason to do ub t the v eraci ty o f the government’s account of Smi th’s hi st o r y, the normal cour se woul d b e to hol d a hearing befo re d i smissing such seri ous al l egatio ns.No. 16-2035 23
V ACA TED AND REMANDED.