United States v. Lloyd Lockwood , 789 F.3d 773 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1809
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LLOYD B. LOCKWOOD,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 12-CR-20070— Harold A. Baker, Judge.
ARGUED APRIL 2, 2015 — DECIDED JUNE 16, 2015
Before BAUER, POSNER, and MANION, Circuit Judges.
MANION, Circuit Judge. Lloyd Lockwood was charged with
possession of a destructive device and with being a felon in
possession of a firearm—in this case, a pipe bomb. Before trial,
he stipulated to the fact that the object he was charged with
delivering into the victims’ family mailbox was a destructive
device as defined by federal law. At trial, his theory was that
he did not know that the package he delivered contained a
destructive device, so he lacked the mens rea to be convicted of
2 No. 14-1809
these crimes. The jury disagreed, and convicted him. Lock-
wood’s sentencing range was 33 to 41 months’ imprisonment
on each count. However, the district court sentenced him to
concurrent terms of 120 months’ imprisonment.
On appeal, Lockwood argues that the object he stipulated
to possessing was not a “destructive device” because it lacked
a power supply and thus could not actually explode. Addition-
ally, Lockwood challenges the federal jurisdiction for this
prosecution by arguing that the object’s end caps lack a
sufficient nexus to interstate commerce. Finally, Lockwood
challenges the procedural and substantive reasonableness of
his sentence. We affirm Lockwood’s convictions, but vacate his
sentence and remand for resentencing.
I. Background
In the late 1980s, Lloyd Lockwood was convicted of a
number of felonies.1 After Lockwood served his time, he found
success through his ownership and operation of an automotive
repair and towing business that employed fourteen people. All
signs suggested that he had abandoned the reckless criminal
lifestyle that plagued his youth. Or so it seemed.
1
The exact number of felonies Lockwood has committed is unclear. The
parties’ stipulations state that Lockwood had three prior felony convictions
for: unlawful restraint, aggravated arson, and possession of a controlled
substance. Appendix 11 at ¶ 11. However, the government’s brief contends
that Lockwood was also convicted of felonies in 1986 for “unlawful
discharge of a weapon” and in 1988 for theft. Gov’t Br. 14. For purposes of
this appeal, the exact number is immaterial because the magic number is
one.
No. 14-1809 3
On March 29, 2011, Lockwood’s problems returned when
an old friend, Susie Curtis, approached him upset that her
brother had initiated charges against her for ripping off their
elderly parents to the tune of $160,000. Curtis surmised that
she could avoid having to go to court on March 31 to face the
music if her brother were also in trouble, so she asked Lock-
wood to place a package inside her brother’s truck and then to
call 911 and report that the package contained a bomb. Lock-
wood agreed and on March 30, 2011, he drove the package to
Decatur, Illinois, and placed it in the brother’s mailbox instead
of his truck because he did not see the truck. Lockwood then
called 911. This exchange followed:
OPERATOR:
“Decatur and Macon County 911, where’s your
emergency?”
LOCKWOOD:
“At 1836 Ferris Drive. The guy’s name is Bobby, he
drive a black truck. The motherfucker talking about
blowing up his job up today. And he got the bomb.”
When the authorities arrived at the brother’s home, they
did not find a bomb. However, the next morning the brother’s
wife found an object that appeared to be a pipe bomb in the
family mailbox. The authorities were called again, and the
bomb squad arrived with a robot. The bomb squad used the
robot to knock off one of the pipe bomb-shaped object’s end
caps. Then the robot picked up what remained of the pipe
bomb-shaped object, poured its black powder into an evidence
can, and then knocked off the other end cap. A photograph of
4 No. 14-1809
the pipe bomb-shaped object (absent the removed end caps) is
reproduced below:
The deconstructed pipe bomb-shaped object consisted of an
initiator, black wires, and black tape, and was surrounded by
insulation and a plastic bag.
A. The federal investigation of Lockwood
Several months later, federal agents became interested in
Lockwood after examining Curtis’s cell phone records and, in
November 2011, two federal agents interviewed him. Lock-
wood initially denied that he knew anything about the incident
or the 911 call, but after one of the agents played a recording of
the call, Lockwood admitted that he made it. Lockwood then
described the package he delivered, but denied knowing what
No. 14-1809 5
was in it. When one of the agents asked why he told the 911
operator that “Bobby had a bomb” if he did not know what
was in the package, Lockwood said he told the operator that
there was a bomb because that was what Curtis told him to
say. Lockwood then agreed to call Curtis while the agents
listened in. During two phone calls to Curtis (which the agents
recorded) Lockwood repeatedly asked her if the bomb was
real. Curtis did not answer the questions and said that they
should not text and should speak on different phones.
B. Proceedings in the district court
On October 4, 2012, the grand jury returned an indictment
against Lockwood, charging him with one count of violating 26
U.S.C. § 5861(d), which states that “[i]t shall be unlawful for
any person to receive or possess a firearm which is not regis-
tered to him in the National Firearms Registration and Transfer
Record,” and one count of violating 18 U.S.C. § 922(g)(1),
which states that “[i]t shall be unlawful for any person who has
been convicted in any court of, a crime punishable by impris-
onment for a term exceeding one year to ... possess in or
affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” He pleaded not
guilty and proceeded to trial by a jury.
1. Trial
The parties stipulated to all material facts except Lock-
wood’s knowledge of the contents of the package. Of particular
relevance to this appeal are two stipulations which read: “[t]he
United States of America and the defendant, Lloyd B. Lock-
wood, stipulate and agree:
6 No. 14-1809
***
The Parties’ Second Stipulation
A qualified explosives enforcement officer from the
Bureau of Alcohol, Tobacco, Firearms, and Explo-
sives examined the device, marked as government’s
group exhibit 2. The explosives enforcement officer
determined that the device is consistent with an
improvised explosive device, commonly known as
a pipe bomb, and would be properly identified as an
explosive bomb. Explosive bombs are destructive
devices as that term is defined in 26 U.S.C. § 5845(f)
and are required to be registered with the National
Firearms Registration and Transfer Record under 26
U.S.C. § 5841(a). Government’s group exhibit 2 is
admitted into evidence.
***
The Parties’ Fourth Stipulation
The end caps of the device, marked as government’s
exhibit 2, were made in China.
Lockwood’s stipulations to these facts were consistent with
his theory of defense at trial, which centered on one element
common to each offense: knowing possession of the pipe
bomb. In her opening statement, Lockwood’s attorney told the
jury:
It is a very simple and also a very difficult question
for you to answer. It’s simple because it’s one thing:
Did he or did he not know that it was a functional
pipe bomb in that package before he dropped it off?
No. 14-1809 7
That is the only issue in this case. Because nobody is
disputing that it was a pipe bomb. I’m not going to
get up here and argue that it wasn’t what they say it
was, or that he didn’t put it in the mailbox, or that
he didn’t call 911, or anything that happened during
the course of the investigation. Because all of that
did happen.
In closing argument, Lockwood’s attorney reiterated,
“There is still just the one issue for you to decide, which is: Did
he know before he placed the package into the [] mailbox—did
he know what it was?” Lockwood’s attorney then acknowl-
edged that:
[The prosecutor] did a very pretty job of arranging
all of the other elements for you and showing you
that those elements have already been established;
and as I told you in the very beginning when I first
got up here, I am not arguing with any of that. We
are not arguing with that. The device ended up
being a pipe bomb. The device was not registered.
All of those things are true.
“All of those things were stipulated to,” she further
explained, because if the prosecutor “had brought in evidence
and shown those things, dragged some ATF agent from
Washington, D.C., to prove the pipe bomb was a pipe bomb,
that would have been a waste of everybody’s time. We’re not
going to fight the things that are just plainly true.”
The district court held a preliminary jury instruction
conference at the close of the first day of trial. During the
conference, the court asked defense counsel if there was any
8 No. 14-1809
objection to Government Instruction No. 23, which read, in
part:
This requirement [“in or affecting commerce” and
“interstate or foreign commerce”] is satisfied if a
component of the destructive device traveled in
interstate or foreign commerce prior to the defen-
dant’s possession of it. A component has traveled in
interstate or foreign commerce if it has traveled
between one state and any other state or country, or
across a state or national boundary line.
Lockwood’s attorney answered, “No.” At the close of the
government’s case, Lockwood moved for a judgment of
acquittal under Rule 29. The motion was denied. Then, at the
conclusion of all the evidence, Lockwood renewed his Rule 29
motion for acquittal. Again, it was denied. At that point, the
district court reiterated knowing possession as “the issue here”
because the other elements were proven by the parties’
stipulations. After a two-day trial, the jury returned a verdict
of guilty on both counts. Lockwood filed post-trial motions,
but they were dismissed as untimely filed. The presiding judge
then retired, and a new judge was assigned to the case for
sentencing.
2. Sentencing
On April 10, 2014, District Judge Baker held Lockwood’s
sentencing hearing. Due to the staleness of Lockwood’s
previous felony convictions, the government withdrew its
initial recommendation that Lockwood be sentenced as a
career criminal. The district court accepted the PSR’s amended
No. 14-1809 9
recitation of Lockwood’s criminal history, and assessed him a
criminal history of category I.
The relevant portion of the amended PSR ultimately
considered by the sentencing court calculated a base offense
level of 18 under U.S.S.G. § 2K2.1 and added a two-point
enhancement pursuant to § 2K2.1(3)(B) because the offense
involved a destructive device, for a total offense level of 20. In
light of Lockwood’s amended criminal history category of I,
this yielded an imprisonment guideline range of 33 to 41
months.
The court proceeded to hear testimony from the victims,
consisting of Curtis’s brother who was the initial target and his
wife, who discovered the pipe bomb-shaped object in the
family mailbox. The government argued for a sentence of 120
months’ imprisonment. Lockwood’s attorney argued for a
sentence of 33 months in light of his assistance with the
authorities’ investigation of Curtis. Finally, Lockwood apolo-
gized profusely to the victims, but maintained his story that he
did not know what was in the package he delivered. After
Lockwood completed his remarks, the court explained its
thinking as follows:
THE COURT: I don’t believe anything you told me.
I believe you worked with this woman, Susie, and
you knew, or at least you’ve—in the phone call you
made, you said you knew it was a bomb, and it
turns out that the bomb was capable of detonation.
It was detonated.
DEFENDANT LOCKWOOD: No, it wasn’t.
10 No. 14-1809
THE COURT: Now—you’re done. You had your
right of allocution, and I’m trying to tell you my
thinking and my reasoning. I have the unfortunate
duty now of making a final disposition in this case.
You have a, an extensive criminal record. You have
an occasion where you’ve discharged firearms at
people, all the other things that are in the record. I
don’t need to repeat them all. They’re extensive.
You’re not—you’re not an armed career criminal. I’ll
accept that. And it’s not in the case. But I’ve—I’ve
come to the conclusion, not out of revenge or pun-
ishment or anything, that you’re a person who needs
to be incapacitated. I need to protect society and put
you away from society because of the violent nature
of your history with the discharge of the firearms;
that you’re willing to participate in putting a bomb,
an explosive device, in somebody’s mailbox or
whatever they were going to do with it. And the fact
is that the device really was an explosive device, and
it was exploded. And so for reasons of incapacita-
tion, to take you away from society, it’s the judg-
ment of the Court that you be committed to the
custody of the Attorney General, or his authorized
representative, for the term of 120 months, which is
the maximum I can give under the statute. Because
I can only repeat myself. I think you need to be
taken away from society.
The district court then entered a sentence of 120 months’
imprisonment followed by three years of supervised release.
No. 14-1809 11
Following sentencing, the court issued a statement of reasons
for the sentence imposed. The court’s justification for imposing
an above-guidelines sentence mirrored those offered by the
court during the hearing and consisted of two sentences.
Lockwood timely appealed his convictions and sentence.
II. Analysis
A. Lockwood’s stipulation to his possession of a
“destructive device”
Lockwood was convicted of possession of a destructive
device. To prove that an object is a “destructive device” under
26 U.S.C. § 5845(f) and 18 U.S.C. § 921(a)(4), the government
must prove that an object which the government alleges to be
a “destructive device” was fully assembled and could deto-
nate, pursuant to subpart (f)(1), or that the defendant had
ready access to all necessary components to readily assemble
an object that could detonate, pursuant to subpart (f)(3). See
United States v. Johnson, 152 F.3d 618, 623 (7th Cir. 1998); see
also, United States v. Strache, 202 F.3d 980, 986–87 (7th Cir. 2000)
(affirming imposition of “destructive device” enhancement
because although objects that appeared to be hand grenades
lacked a “plug” necessary to be operational, defendant could
readily convert them into operational destructive devices with
minimal labor).
Lockwood argues that since he lacked an immediate power
supply, he did not possess a “destructive device” as that
phrase is defined in 26 U.S.C. § 5845(f) and 18 U.S.C.
§ 921(a)(4). Lockwood’s argument might have persuaded the
district court if he had presented it in a motion to dismiss the
indictment, but in his pretrial submissions, Lockwood stipu-
12 No. 14-1809
lated that he possessed an explosive bomb and that the
explosive bomb he possessed was a destructive device as that
phrase is defined in 26 U.S.C. § 5845(f).
Despite this stipulation, Lockwood asserts that no rational
jury could have found the essential elements of the crime to be
present beyond a reasonable doubt. See United States v. Johnson,
592 F.3d 749, 754 (7th Cir. 2010). Lockwood supports this
argument by directing our attention to the ATF agent’s trial
testimony, in which he identified all of the components he
recovered from the pipe bomb-shaped object from the family
mailbox, but failed to list a power supply among them.
We also reject this argument because Lockwood stipulated
to the fact that the pipe bomb-shaped object he placed in the
family mailbox was a destructive device. Lockwood cannot
now escape the parties’ stipulation by challenging his convic-
tion based on a lack of evidence after he conceded the fact in a
stipulation.
The record is clear and consistent that Lockwood elected to
enter into this stipulation on the basis of his strategic decision
to focus the jury’s attention on the issue of whether he know-
ingly possessed an object alleged to be a pipe bomb. By making
the strategic decision to enter into a stipulation with the
government, Lockwood abandoned his ability to challenge the
contents of that stipulation later at trial or on appeal. See United
States v. Fluker, 698 F.3d 988, 998 (7th Cir. 2012); see also, United
States v. Muse, 83 F.3d 672, 679 (4th Cir. 1996) (“[A] defendant
may not argue at trial or on appeal that the stipulation is
insufficient to prove beyond a reasonable doubt the facts or
elements to which he has stipulated.”). Fluker treats abandoned
No. 14-1809 13
issues as waived, 698 F.3d at 998, and waived issues are
unreviewable. United States v. Walton, 255 F.3d 437, 441 (7th
Cir. 2001). Lockwood is bound by his stipulation.
B. Nexus to interstate commerce
The government also charged Lockwood with being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
A pipe bomb qualifies as a firearm within the meaning of the
statute. The statute, though, also requires the government to
prove that the pipe bomb-shaped object Lockwood allegedly
possessed was “in or affecting interstate commerce.” 18 U.S.C.
§ 922(g). The parties’ fourth stipulation reads that “[t]he end
caps of the device, marked as government’s exhibit 2, were
made in China.” Because China is outside of Illinois, by
implication the parties stipulated to the legal conclusion that
the pipe bomb-shaped object’s two end caps traveled in
interstate commerce.
In response, Lockwood contends that a conviction under
§ 922(g) requires proof that more than one component of the
object traveled in interstate commerce. The Fourth Circuit
previously rejected this argument under the exact same
circumstances in United States v. Verna, 113 F.3d 499 (4th Cir.
1997), where the parties had stipulated that one component of
the destructive device had traveled in interstate commerce (in
that case, gun powder). In Verna, the court said that “it is
simply not necessary, in order to satisfy the statute, that each
and every individual part of the bomb itself have traveled
across state lines.” Id. at 503. And while our recent decision in
United States v. Foley, 740 F.3d 1079 (7th Cir. 2014), did not
involve a stipulation or a firearm, there we rejected the
14 No. 14-1809
defendant’s sufficiency of the evidence argument and held that
a computer hard-drive made in China “could satisfy the
government’s burden to prove the commerce element”
necessary to convict a child pornographer. Id. at 1086. How-
ever, we need not decide whether to adopt the rationale of
those authorities today because even if we treat the two end
caps as one element for interstate commerce purposes, Lock-
wood waived this argument.
Prior to trial, Lockwood stipulated that a component of the
object traveled in interstate commerce by stipulating that the
ends caps were made in China.2 Then, at trial, he stated that he
had no objection to Government Instruction No. 23, which
instructed the jury that the interstate nexus requirement of 18
U.S.C. § 922(g) “is satisfied if a component of the destructive
device traveled in interstate or foreign commerce prior to the
defendant’s possession of it” (emphasis added).
On these bases, Lockwood is bound by his stipulation and
waived any challenge to the interstate commerce element.
United States v. Gonzalez, 319 F.3d 291, 298 (7th Cir. 2003) (“This
challenge has been waived because the defendants accepted
the relevant instructions—they affirmatively stated in court,
‘No objection.’”). Because Lockwood stipulated that the
2
Although Lockwood reasserts the same insufficiency of the evidence
argument that he made in his earlier challenge to the parties’ second
stipulation, we reject it again for the same reason—we will not entertain
sufficiency of the evidence arguments on appeal when the parties’
stipulations eliminate the need for the government to introduce evidence
related to those issues at trial. Fluker, 698 F.3d at 998; Muse, 83 F.3d at 679.
No. 14-1809 15
elements of convictions he now challenges on appeal were met,
we affirm his convictions.
C. Lockwood’s sentencing hearing
Finally, Lockwood contests the procedural soundness and
substantive reasonableness of his sentence.
1. Procedural soundness
We review Lockwood’s procedural challenge to his
sentence de novo. United States v. Dachman, 743 F.3d 254, 261
(7th Cir. 2014). “A sentencing court commits procedural error
by not adequately explaining its choice of sentence.” United
States v. Lyons, 733 F.3d 777, 784 (7th Cir. 2013). To ensure that
the sentencing judge did not commit any “significant proce-
dural error,” Gall v. United States, 552 U.S. 38, 53 (2008), we
examine whether it: i) properly calculated the Guideline range;
ii) recognized that the Guideline range was not mandatory; iii)
considered the sentencing factors in 18 U.S.C. § 3553(a); iv)
selected a sentence based on facts that were not clearly
erroneous; and, v) adequately explained the chosen sentence
including an explanation for any deviation from the Guidelines
range. United States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008).
Lockwood argues that the district court committed significant
procedural error at sentencing by failing the last three criteria.
Under the Supreme Court’s teachings:
If [the sentencing court] decides that an outside-
Guidelines sentence is warranted, he must consider
the extent of the deviation and ensure that the
justification is sufficiently compelling to support the
degree of variance. We find it uncontroversial that a
16 No. 14-1809
major departure should be supported by a more
significant justification than a minor one. After
settling on the appropriate sentence, he must ade-
quately explain the chosen sentence to allow for
meaningful appellate review and to promote the
perception of fair sentencing.
Gall, 552 U.S. at 50.
Based on Gall, Lockwood argues the sentencing court failed
the fifth Jackson factor—which requires that it “adequately
explain ... any deviation from the Guidelines range.” 547 F.3d
at 792. We stress that the question is not whether 120 months
could be a reasonable sentence, but whether the sentencing
court’s “articulated reasons ... are sufficiently compelling on
this record to satisfy us that the term imposed is reasonable.”
United States v. Castro-Juarez, 425 F.3d 430, 433 (7th Cir. 2005).
For Lockwood, the district court’s 120-month sentence was
nearly three times the high end of the Guideline sentencing
range.
“A departure from the Guidelines, especially a significant
one, must be carefully explained.” United States v. Snyder, 635
F.3d 956, 961 (7th Cir. 2011). Yet, the court’s explanation in this
case totals one full page of the sentencing transcript. We do not
mean to suggest that one page of transcript may never supply
an adequate justification for a sentence. However, here, the
court made no explicit reference to 18 U.S.C.§ 3553, it failed to
explain how it balanced those factors, and it made no reference
to the advisory Guideline range at all. Snyder, 635 F.3d at 962
(“A failure to altogether consider the Guidelines is not
harmless.”).
No. 14-1809 17
Presumably in an attempt to satisfy § 3553(a)(1) (the history
and characteristics of the defendant), the sentencing court
observed that Lockwood had “an extensive criminal record”
and mentioned “an occasion where [he] discharged firearms at
people.” But the facts of his criminal history are already taken
into account by Lockwood’s criminal history level—category
I—which was integral to the Guidelines recommendation of 33
to 41 months. The district court’s allusion to the obvious fails
to prove the “compelling justification” Gall deems necessary to
impose an above-Guidelines sentence of nearly three times the
high end of the Guidelines.
The court also referenced its need to “incapacitate[]”
Lockwood “to protect society and put [him] away from society
because of the violent nature of [his] history.” While these
statements promote § 3553(a)(2)(B)’s goal of affording ade-
quate deterrence to criminal conduct and § 3553(a)(2)(C)’s goal
of protecting the public from further crimes of the defendant,
these brief remarks do not explain with particularity the
reasons why Lockwood is different from the vast majority of
defendants—many of whom also have criminal histories, are
dangerous, and must be incapacitated to protect society—but
who are not sentenced to terms of imprisonment nearly three
times above the high end of the Guidelines.
When a district court imposes an sentence that is multiple
times above the Guidelines, it must explain why that particular
defendant requires a more severe punishment than most
defendants. See United States v. Higdon, 531 F.3d 561, 564 (7th
Cir. 2008) (vacating sentence more than two-and-a half-times
the high end of the Guidelines for, inter alia, failing to explain
why the defendant must be punished more severely than most
18 No. 14-1809
defendants who receive within-Guidelines sentences). In other
words, the facts recounted by the court must address the
disparity—i.e., why this defendant deserves a significantly
higher sentence than others who commit the same offense.
In addition to Higdon, this case is also reminiscent of United
States v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005). In Castro-
Juarez, the defendant pleaded guilty to being present in the
United States unlawfully after his removal following a felony
conviction. Id. at 431. The high end of the Guidelines recom-
mended a sentence of 21 months’ imprisonment, but the court
imposed a sentence of over twice that—48 months. Id. Castro-
Juarez appealed his sentence, and we vacated and remanded
it for resentencing because the district court did not sufficiently
justify the imposition of a sentence more than double the high
end of the Guideline range, even though its commentary had
focused on Castro-Juarez’s “repeated cycles of unlawful entry
and deportation, the ‘horrible’ criminal record he incurred
living in the United States, and his history of violent acts
affecting the women and children in his life.” Id. at 432.
In vacating Castro-Juarez’s sentence, we noted that the
sentencing court incorrectly focused exclusively on his criminal
history. Id. Likewise, the district court here also focused almost
exclusively on Lockwood’s previous criminal history, but
sprinkled in a mention of his current offense and two com-
ments about the need to incapacitate him. Yet the thrust of the
problem in both cases is the same. In order for us to uphold a
sentence that is nearly three-times the Guideline recommenda-
tion, the sentencing court must provide a compelling justifica-
tion, Gall, 552 U.S. at 50; United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005), “adequately explain ... its deviation from the
No. 14-1809 19
Guidelines range,” and provide the reasons that the sentencing
court believes the defendant is deserving of extraordinary
punishment. Jackson, 547 F.3d at 792; Castro-Juarez, 425 F.3d at
437. In this case, the sentencing court’s truncated reference to
the defendant’s criminal history, a mention of the current
offense, and two comments about incapacitation, fail to
adequately satisfy the procedural conditions necessary for us
to sustain a sentence that is nearly three times above the
Guideline recommendation.
Finally, the court made no mention of mitigation at sentenc-
ing until Lockwood’s attorney inquired after the fact if the
court had considered his arguments in mitigation. “District
courts must consider a defendant’s principal, nonfrivolous
arguments in mitigation when selecting an appropriate
sentence for a defendant,” and they must do so on the record
before imposing a sentence. United States v. Poulin, 745 F.3d
796, 800 (7th Cir. 2014). This procedural rule is important
because it “promote[s] the perception of fair sentencing.” Gall,
552 U.S. at 50. Lockwood only raised two arguments in
mitigation—that he had assisted the authorities with their
investigation of Curtis and had run a successful business.
While not likely to be found compelling, these arguments are
not frivolous. Although the court confirmed that it considered
these arguments in mitigation, it did not make this acknowl-
edgment until prompted by counsel after it imposed its
sentence and it did not mention Lockwood’s assistance with
the authorities’ investigation of Curtis at all.3 The totality of
3
We also note that the court remarked at one point in the proceeding that
(continued...)
20 No. 14-1809
these procedural missteps leaves us unable to meaningfully
review Lockwood’s sentence. United States v. Washington, 739
F.3d 1080, 1082 (7th Cir. 2014). Accordingly, we vacate
Lockwood’s sentence, and remand for resentencing.4
2. Substantive reasonableness
Lockwood also challenges the substantive reasonableness
of his sentence. Because we conclude that the district court’s
sentence was procedurally insufficient, we need not decide
whether his sentence is substantively reasonable. Snyder, 635
F.3d at 962. We express no view on whether—with the benefit
of a sufficient explanation—a sentence of 120 months’ impris-
onment would be substantively reasonable under these
circumstances.5
3
(...continued)
it hadn’t sentenced a defendant in sixteen years. While the court made this
remark only in passing, sentencing courts must be cautious of extraneous
comments that hinder, rather than “promote the perception of fair
sentencing.” Gall, 552 U.S. at 50.
4
Although Lockwood argues that the sentencing court clearly erred by
twice stating that the object exploded during the authorities’ investigation,
this argument is moot because our conclusion that the sentencing court
committed procedural error under § 3553(a) is based on the undisputed
commentary in the sentencing transcript. On remand, if the parties
determine that there is some dispute over whether the pipe bomb-shaped
object “exploded,” they should present their positions to the court before
resentencing so that it is adequately apprised.
5
Still, it appears from the sentencing judge’s comments that he based
Lockwood’s sentence primarily on two facts: 1) that Lockwood has misused
(continued...)
No. 14-1809 21
III. Conclusion
Lockwood stipulated to the fact that he possessed a
destructive device. He also stipulated to the fact that the two
end caps on the destructive device that he possessed were
made in China, which means they had a sufficient nexus to
interstate commerce to confer federal jurisdiction on this
prosecution. Accordingly, we AFFIRM Lockwood’s convic-
tions. However, because Lockwood’s sentence was procedur-
ally unsound, we VACATE his sentence, and REMAND this
case to the district court for resentencing consistent with this
opinion.
5
(...continued)
firearms, and; 2) that he is the type of person who is “willing to participate
in putting a bomb, an explosive device, in somebody’s mailbox.” By these
comments, the judge appeared to reason that Lockwood needed to be
incapacitated because he is likely to harm others with firearms and bombs.
However, the facts do not support this conclusion. First, Lockwood’s
successful business enterprise is evidence that he has moved on from the
gun crimes of his past. Second, the facts do not suggest that Lockwood
intended to harm anyone with the device that he possessed. He only
intended to use the device to frame Curtis’s brother—which is why he
called 911 immediately after he placed it in the family’s mailbox. That the
device remained in the family’s mailbox only to be discovered the next day
was not the result of Lockwood’s malice, but his inability to anticipate that
the authorities would not search the mailbox based on his report that
“Bobby had a bomb.” The best evidence of this reality is the face of the
indictment: Lockwood was charged with possession of a destructive device,
not attempted terrorism.