### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 3979

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

G ROVER C OLEMAN F ERGUSON

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 15

‐ cr

‐ 00081

— William C. Griesbach

, Chief Judge

.

____________________

A RGUED D ECEMBER 13, 2017

— D ECIDED M AY 2, 2018

____________________

Before W OOD

, Chief Judge

, and M ANION and H AMILTON

,

Circuit Judges

.

M ANION

, Circuit Judge

. When Grover Ferguson was

17 years old he shot a woman three times during a carjacking,

causing significant permanent injury. Ferguson pleaded

guilty to vehicular robbery by force and discharging a gun.

The sentencing guidelines range was 198 to 217 months’ im

‐ prisonment (16.5 to 18 years), but the district judge sentenced

Ferguson to 600 months in prison (50 years). He appealed,2 No. 16

‐ 3979

and in United States v. Ferguson

, 831 F.3d 850 (7th Cir. 2016),

we vacated his sentence and remanded the case to a new

judge, who imposed a 35

‐ year sentence. Now Ferguson ar

‐

gues that the district court failed to adequately consider his

youth as a mitigating factor and to properly explain the

above

‐ guidelines sentence. We affirm the judgment.

I. Background

In April 2015, 17

‐ year

‐ old Grover Ferguson stole a hand

‐

gun from his mother. The next day, while high and drunk,

Ferguson checked a gas station for a running car to steal. Not

seeing one, he walked for hours. As it became dark, he saw a

woman leave her home and approach her car. Ferguson said

“hi” to her and the woman later said she did not feel threat

‐

ened. She went into her house before coming outside again.

As she walked to her car, Ferguson hid behind a tree and

waited for her to unlock the car door. After the woman got in,

Ferguson opened the passenger

‐ side door, pointed a gun at

her, and ordered her to give him the keys. The woman

paused, initially thinking it was a joke. When he yelled,

“Bitch, give me the keys,” she feared for her life.

The woman placed the keys on the passenger seat, but still

Ferguson shot her several times. Ferguson said that he

thought the woman moved toward him, so he fired the gun

and then walked to the driver’s side and demanded the keys

again as she crawled on the street. She was shot three times,

including once in the face. The victim’s niece and the niece’s

4

‐ year

‐ old daughter witnessed the shooting from across the

street, where they were gathering belongings from their car.

When Ferguson saw the victim’s niece, he shouted: “Bitch, get

back in the car.” Ferguson then started the victim’s car and asNo. 16

‐ 3979 3

she crawled to the curb to avoid being run over, he drove

away.

The police were nearby investigating another matter when

they heard gunfire and quickly responded to the victim’s lo

‐

cation. They found her on the ground, bleeding from her face.

The victim spent the next four days in the hospital; she sur

‐

vived but suffers permanent injuries, including blindness in

one eye. She also suffers from irreparable nerve damage in her

ear and face, numbness on the left side of her mouth, and

daily pain. One of the bullets is still lodged in her face, and

she can no longer drive. (Despite all this, the Social Security

Administration denied her application for disability benefits.)

The police caught Ferguson the day after the shooting, but

not before he initiated a brief high

‐ speed chase. After his ar

‐

rest, he admitted taking the car and shooting the victim. Fer

‐

guson then pleaded guilty to vehicular robbery by force,

18 U.S.C. § 2119(2), and to discharging a firearm during a

crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii), pursuant to a

nonbinding plea agreement. Sentencing followed. The gov

‐

ernment recommended that the district court sentence Fergu

‐

son to 20 years’ imprisonment; the defense recommended

15 years. But the court sentenced Ferguson to 50 years. Fergu

‐

son appealed, and we vacated the sentence because the dis

‐

trict judge had not explained why a sentence within the

guidelines range was so inadequate that a sentence more than

31 years longer than the top end was necessary. Ferguson

,

831 F.3d at 855.

At resentencing the parties jointly recommended a sen

‐

tence of 20 years. The government’s argument for that above

‐ guidelines sentence focused primarily on the gruesomeness

of the crime, the impact on the victim, and Ferguson’s juvenile4 No. 16

‐ 3979

record. Defense counsel particularly emphasized Ferguson’s

age, and noted as well his acceptance of responsibility, re

‐

morse, and upbringing. Ferguson’s post

‐ arrest conduct was

also discussed: a probation officer testified that Ferguson had

been caught with a weapon in his prison locker but also ad

‐

mitted there was little evidence provided from the prison

about that violation. Ferguson also had skipped a prison

G.E.D. class five times, but he explained that there were

scheduling mishaps when he was called to court and that he

had some medical issues. Ferguson did not exercise his right

to allocute, but he wrote a letter apologizing to the court and

to the victim.

In crafting the sentence, the judge began by analyzing the

nature and circumstances of the offense. While acknowledg

‐ ing that the parties understood that Ferguson committed a

horrendous crime, the judge explained that the charges and

the sentencing guidelines underrepresented the seriousness

of the offense. The judge explained that Ferguson was before

him for vehicular robbery by force and for discharging a fire

‐

arm during a crime of violence, but that discharging a firearm

“can mean a lot of different things.” “When I look at this

crime,” the judge elaborated, “I see an attempted murder”—

“intentional conduct” in which Ferguson “at point blank

range shot a woman in the face.” He shot her three times, left

her to die, and would have driven over her had she not

crawled out of the way.

Continuing the analogy to attempted murder, the judge

observed that the base

‐ offense level for first

‐ degree murder is

43, which results in an advisory life sentence. “If an attempt,

you decrease by three levels, unless the Defendant completed

all the acts the Defendant believed necessary for successfulNo. 16

‐ 3979 5

completion of the substantive offense,” the judge quoted, and

then explained that he believed “the Defendant did every

‐ thing he could, he reasonably would have believed necessary

to take the life of this person.” The judge went on to say that

Ferguson was “not here for a life sentence” and that “appar

‐ ently on the Constitution now I can’t impose a life sentence

even if I thought it appropriate, because he was two months

shy of his 18th birthday at the time he committed this of

‐

fense.” But comparing the advisory sentence for attempted

murder informed the judge’s view of the magnitude of the of

‐

fense.

The judge next considered the impact of the crime on the

victim. Here, Ferguson’s actions will have a “lifelong impact”

not only “physically disabling, but emotionally and psycho

‐ logically harming her” as well as “harming those around

her.” “It’s a miracle of modern medicine and a lot of good luck

that this woman has the ability to be here today, and to speak

to me and ask me to impose what she would regard as a fair

sentence, which is the maximum,” said the judge.

The judge then discussed the arguments in mitigation.

First, he briefly discussed Ferguson’s youth, referencing the

arguments and scientific studies presented in Ferguson’s

presentencing memorandum. The judge acknowledged that

at 17, Ferguson’s brain was not fully developed, and that

some doctors say it would not finish developing until his mid

‐

twenties. But he explained: “I don’t think, though, we do not

hold people responsible for serious crimes until their mid

‐

twenties. We hold them responsible. We certainly consider

the youth at the time, and we consider other factors.”

The district judge returned to Ferguson’s age later in the

resentencing hearing. He explained that he was familiar with6 No. 16

‐ 3979

scientific literature about brain development but that “scien

‐

tific literature also tells us about people who are sociopaths.”

“There are people who have no conscience,” the judge contin

‐

ued, referencing people with personality disorders, and there

are people who “are very dangerous.” But, the judge said:

“I’m not here to diagnose Mr. Ferguson. I don’t have the abil

‐ ity to do that, and I’m not pretending I do.” The judge then

said that he had reviewed Supreme Court cases about youth;

he noted that “any law mandating a life sentence for homicide

would be unconstitutional,” but no such law was at issue. The

judge concluded: “I want to emphasize that the Supreme

Court has never said that because of the slowness of the de

‐ veloping mind in some people, on average, that the Court

cannot give strong consideration to the risk, the danger to the

community, that an individual represents as reflected by his

conduct before sentencing, and his conduct for the very crime

that he’s been sentenced.”

The judge dismissed Ferguson’s other mitigation argu

‐

ments; first he recognized that Ferguson was under the influ

‐

ence of drugs and alcohol at the time of the offense, but found

it a flimsy excuse since Ferguson had been driving around

with his girlfriend without being pulled over by police or get

‐ ting into an accident. And the judge acknowledged that Fer

‐

guson confessed to his crime, but discounted his acceptance

of responsibility because he led the police on a high

‐ speed

chase and admitted his conduct only after being caught. The

judge also noted that at the first sentencing hearing, Ferguson

inexplicably winked at the victim after receiving the 50

‐ year

sentence, which, he said, demonstrated his lack of remorse.

Next, the judge turned to Ferguson’s history and charac

‐

teristics, focusing on his upbringing and criminal record. TheNo. 16

‐ 3979 7

judge noted that Ferguson was with his “lousy mother,” a

crack addict, for only a short time. He was then adopted by

his aunt and uncle, who by his aunt’s admission, “gave him

anything he wanted” and “spoiled him.” But at age 13, Fergu

‐

son arranged an armed robbery with his cousin so that he

could get money from his parents for new shoes. As punish

‐

ment Ferguson was sent to a reform school, but the sentence

was stayed and he was put on probation. He repeatedly vio

‐

lated probation and so was sent to a juvenile detention facil

‐ ity. Within two months of being released, he committed this

crime, and this told the judge that Ferguson’s crime was not

an impulsive event.

In preparing to announce the sentence, the judge con

‐

cluded that Ferguson posed a substantial risk to the public,

that the crime “crie[d] out for deterrence,” and that the of

‐

fense conduct was akin to attempted murder—significantly

more severe than the crimes of conviction indicated. The

judged then imposed consecutive prison sentences of

120 months and 300 months for the carjacking and the firearm

offense, respectively, for a total of 35 years. When the judge

later asked Ferguson’s counsel if there were any arguments

that she felt he had not addressed, counsel replied, “No, Your

Honor.”

II. Analysis

Ferguson raises two main arguments on appeal: (1) that

the district judge disregarded Supreme Court precedent and

failed to adequately consider his youth as a mitigating factor,

and (2) that the district judge procedurally erred by not artic

‐ ulating sufficiently his reason for imposing a sentence 17

years longer than the high end of the guidelines range. We

review claims of procedural error in sentencing de novo, and8 No. 16

‐ 3979

challenges to a sentence ʹ s overall substantive reasonableness

for an abuse of discretion. United States v. Thompson

, 864 F.3d

837, 841 (7th Cir. 2017), cert. denied

, 138 S. Ct. 704 (2018).

Ferguson expressly dubs his second argument a proce

‐

dural one, but it is not clear how he frames the first. He does

not refer to a standard of review for that issue, though he

identifies the de novo standard applicable to his procedural

challenge. And although the government pointed this out in

its response brief, Ferguson did not file any reply brief to clar

‐ ify the point. We interpret his first argument as substantive

because it focuses for the most part on the judge’s failure to

give due consideration to a legal argument rather than a fail

‐

ure to discuss it on the record (a fine line, to be sure).

See United States v. Matthews

, 701 F.3d 1199, 1204–05 (7th Cir.

2012).

This conclusion also resolves the parties’ dispute about

whether Ferguson waived his first argument when his coun

‐

sel agreed that the judge had addressed all of Ferguson’s ar

‐

guments. The government is correct that a contention that the

district court failed to address a mitigating argument is

waived if the defendant answered affirmatively when asked

if he was satisfied that the court had addressed his main ar

‐

guments in mitigation. United States v. Garcia

‐ Segura

, 717 F.3d

566, 569 (7th Cir. 2013). “An affirmative answer, however,

would not waive an argument as to the merits or reasonable

‐

ness of the court’s treatment of the issue.” Id. Because we char

‐

acterize as substantive Ferguson’s argument that the district

court wrongly applied Supreme Court jurisprudence and

generally misunderstood how youth mitigates culpability, he

did not waive it.No. 16

‐ 3979 9

Nevertheless, Ferguson’s argument lacks merit because

the district court appropriately considered Ferguson’s youth

and did not disregard pronouncements of the Supreme Court

on that topic. The Supreme Court has indeed grappled with

the issue of youth in the context of the death penalty and life

sentences without parole, and identified three areas of dis

‐

tinction between youths and adults: (1) a lack of maturity and

an underdeveloped sense of responsibility; (2) increased sus

‐ ceptibility to negative influences and outside pressures; and

(3) more transitory, less fixed, personality traits. Roper v. Sim

‐

mons

, 543 U.S. 551, 569 (2005); see Graham v. Florida

, 560 U.S.

48, 68 (2010) (explaining, citing Roper

, that because “juveniles

have lessened culpability they are less deserving of the most

severe punishments”); see also Miller v. Alabama

, 567 U.S. 460,

471 (2012) (explaining, citing Roper and Graham

, that “children

are constitutionally different from adults for purposes of sen

‐ tencing”).

In this case, the sentencing judge did not, as Ferguson in

‐

sists, impermissibly ignore or misapprehend the Supreme

Court’s “juveniles are different” jurisprudence or fail to ex

‐ plain how youth factored into his sentencing decision. For in

‐

stance he explained that “the Supreme Court has never said

that because of the slowness of the developing mind in some

people, on average, that the Court cannot give strong consid

‐

eration to the risk, the danger to the community, that an indi

‐

vidual represents as reflected by his conduct before sentenc

‐ ing, and his conduct for the very crime that he’s been sen

‐

tenced for.” The judge echoed Justice O’Connor when he em

‐ phasized the arbitrariness of a distinction between 18 years

and 17 years, 10 months. See Roper, 543 U.S. at 601–02 (O’Con

‐

nor, J., dissenting) (age

‐ based line on death penalty protects

mature offenders but leaves vulnerable those who are not).10 No. 16

‐ 3979

Contrary to Ferguson’s argument, the judge did not

merely say that youth is not a “free pass.” The judge engaged

with Ferguson’s mitigating argument; he referred to the sci

‐

entific evidence about young brains and the Supreme Court’s

boundaries on sentencing juveniles. He could have expressed

less disdain for those boundaries, but he was entitled to disa

‐

gree. See United States v. Hancock

, 825 F.3d 340, 345 (7th Cir.

2016). He reasonably concluded that the mitigating factor of

youth was outweighed by the nature of the offense, the im

‐

pact on the victim, Ferguson’s long and growing criminal his

‐

tory, his misdeeds while in custody, and his evident lack of

remorse.

The judge’s express weighing of these factors also dooms

Ferguson’s second argument, that the district judge procedur

‐ ally erred by not articulating a basis for imposing a prison

sentence 17 years longer than the high end of the guidelines

range. That discussion satisfied the obligation to consult the

§ 3553(a) factors and the mandate to give a proportional ex

‐ planation for a greater departure from the guidelines range.

See Gall v. United States

, 552 U.S. 38, 49–50 (2007).

Moreover, the judge repeatedly emphasized that the

guidelines did not adequately capture the seriousness of the

offense, which was most comparable to attempted murder.

The judge noted that a conviction for discharging a firearm

during a crime of violence carries the same minimum sen

‐

tence whether a defendant was “shooting off a gun in the

course of stealing someone’s car” or shooting someone in the

face, at point

‐ blank range, and nearly running over her as she

crawled away from the car. This failed to account for the se

‐ verity of the crime, the judge said, emphasizing numerousNo. 16

‐ 3979 11

times that Ferguson had a more culpable intent not present in

simply discharging a firearm into the air.

Ferguson says that one problem with the judge’s analysis

is that “this wasn’t a first

‐ degree murder case.” But nothing

stopped the judge from consulting a different, but relevant,

provision of the guidelines in trying to come up with an ap

‐ propriate sentence; it is not as though he used the first

‐ degree

murder guideline in calculating the offense level. The analogy

made the judge’s reasoning clearer and more concrete.

Because the district court adequately explained why such

a long sentence was “sufficient, but not greater than neces

‐ sary,” 18 U.S.C. § 3553(a), we affirm the district court’s judg

‐

ment.