United States v. Edward D. Boatman , 786 F.3d 590 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2081
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD BOATMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 367 — James B. Zagel, Judge.
____________________
ARGUED NOVEMBER 10, 2014 — DECIDED MAY 15, 2015
____________________
Before WOOD, Chief Judge, and ROVNER and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. This appeal concerns the sentence that
Edward Boatman received after he pleaded guilty to one
count of bank robbery, in violation of 18 U.S.C. § 2113(a). Af-
ter two hearings, the district court gave him a below-
Guidelines term of 76 months’ imprisonment and three
years’ supervised release. In so doing, it rejected his request
for a sentence of time served with community-based drug
2 No. 14-2081
treatment. Boatman argues that this sentence was procedur-
ally flawed, because the district court failed to give meaning-
ful consideration to his requested disposition. Boatman’s
theory demands more of the district court than the law re-
quires, however, and so we affirm its sentence.
I
On January 15, 2012, Boatman walked into a TCF Bank
branch in Stickney, Illinois, and gave the teller the following
note: “Fill The Bag With Stacks of 50’s and 20’s. I have a gun
and will use it. If u decide to Put a ink bomb in the bag, Ei-
ther I’ll be back for you or my partner. Chose your moves
carefully [sic].” The teller complied by putting some money
in a brown bag and giving it to Boatman. Boatman peered in
the bag and told the teller that he wanted coins. The teller
obliged him, and Boatman walked out. An audit of the
teller’s drawer revealed that Boatman had robbed the bank
of approximately $334.50.
It was not long before a federal grand jury indicted
Boatman for his crime, and on August 30, 2013, he entered a
guilty plea. In its pre-sentence report, the Probation Office
concluded that Boatman was a career offender. Following
U.S. Sentencing Guideline § 4B1.1(b)(3), it calculated an of-
fense level of 29 (using a base of 32 and subtracting three
levels for acceptance of responsibility) and a criminal history
of VI. Had Boatman not been a career offender, his base of-
fense level would have been 20 under § 2B3.1(a); with two
levels added for taking property of a financial institution,
two added for a threat of death, and three subtracted for ac-
ceptance, his final offense level would have been 21. That
level, along with criminal history category III (calculated on
the basis of his four criminal history points), would have re-
No. 14-2081 3
sulted in an advisory range of 46–57 months. In its sentenc-
ing memorandum, the government argued that Boatman’s
two qualifying predicate convictions for career offender sta-
tus, which together involved 0.8 grams of heroin that he sold
for $40, were insignificant and accordingly warranted a
downward departure from the Guidelines range. The prose-
cutor recommended a sentence of 120 months.
Boatman also filed a sentencing memorandum, but he
urged the court to impose a much lighter sentence. He
stressed that without the career-offender enhancement, the
low end of his Guidelines range would have been 46
months. He requested a sentence of time served (approxi-
mately 24 months) and drug treatment based on his long his-
tory of substance abuse problems involving cocaine and
heroin. In support of this request, Boatman submitted a de-
tailed report by a mitigation specialist who was also a certi-
fied addiction counselor. He also proffered empirical studies
indicating that community-based treatment more effectively
prevents recidivism.
The court held what turned out to be the first day of its
sentencing hearing on April 14, 2014. Boatman’s counsel dis-
cussed at some length the reasons for such a substantial de-
viation from the career-offender range; the government
countered with information about the seriousness of Boat-
man’s offense, emphasizing Boatman’s express threat to the
teller. Ultimately the court decided to continue the hearing
until April 22 so that it could consider “how long [the court
must] put him in or continue his incarceration to maximize
his chance of getting into [the Residential Drug Abuse Pro-
gram]” (the Program) run by the Bureau of Prisons (the Bu-
reau). Before the hearing resumed, the government submit-
4 No. 14-2081
ted a supplemental sentencing memorandum directing the
court’s attention to Tapia v. United States, 131 S. Ct. 2382, 2393
(2011), which held that a district court “may not impose or
lengthen a prison sentence to enable an offender to complete
a treatment program or otherwise to promote rehabilita-
tion.”
On April 22, 2014, the court acknowledged Tapia and de-
clared that it would no longer consider the Program in de-
termining the length of Boatman’s sentence. Instead, it em-
phasized the need to incapacitate Boatman given the seri-
ousness of his offense, and it announced the sentence of 76
months. Boatman’s attorney then asked whether the court
had considered Boatman’s history of drug addiction and the
empirical evidence he submitted regarding drug treatment
and recidivism. The judge responded that he had considered
the materials, but that he had concluded that a term more
substantial than Boatman’s suggested sentence was neces-
sary for both adequate punishment and incapacitation.
Boatman filed a timely notice of appeal from that judgment.
II
When we review a sentence imposed by a district court,
we look first for procedural error; if none is present, we turn
to the substantive reasonableness of the sentence. We review
procedural sentencing errors de novo and substantive rea-
sonableness only for abuse of discretion. United States v.
Scott, 555 F.3d 605, 608 (7th Cir. 2009). Common procedural
errors include “failing to calculate (or improperly calculat-
ing) the Guidelines range, treating the Guidelines as manda-
tory, failing to consider the § 3553(a) factors, selecting a sen-
tence based on clearly erroneous facts, or failing to adequate-
ly explain the chosen sentence—including an explanation for
No. 14-2081 5
any deviation from the Guidelines range.” United States v.
Jackson, 547 F.3d 786, 792 (7th Cir. 2008) (citing Gall v. United
States, 552 U.S. 38, 51 (2007)).
Boatman contends that the district court erred by failing
to give meaningful consideration to his arguments on the
§ 3553(a) factors. We grant that his arguments went far be-
yond those we have sometimes described as “stock”: they
were significant and well supported. The question is there-
fore whether the court adequately considered them and gave
a sufficient explanation for the weight it gave them. Before
we turn to that question, however, we must address a wrin-
kle in the sentencing proceedings: the fact that they were
spread over two days and interrupted by supplemental
memoranda from the parties.
A
At the end of the hearing on April 14, the court appeared
to be ready to recommend a relatively short sentence that
would include a placement in the Program. It announced,
however, that it was going to postpone its decision so that
the parties could answer “a single question of how long [it
would] have to put him in or continue his incarceration to
maximize his chance of getting into [the Program].” The
government filed a supplemental memorandum answering
that direct question (approximately 24 months), but also
properly alerting the court to the holding of Tapia. 131 S. Ct.
at 2393. The government recommended the Program for
Boatman, but it cautioned the court not to link the term of
imprisonment to the treatment program.
Boatman’s supplemental memorandum disputed the
amount of time it takes a prisoner to complete the Program
6 No. 14-2081
and added two additional mitigation arguments. The first
concerned Boatman’s detention in the Kankakee County jail
from July 16, 2012, to August 13, 2013. His attorney argued
that this detention was “substandard for federal detention”
and had “an increased deterrent effect” (and thus presuma-
bly should count for more). Counsel’s second point was a
request that the district court consider Boatman’s union
membership as something that increased his chance of stable
employment and made him a more promising candidate for
rehabilitation.
Boatman’s attorney mentioned the supplemental memos
at the start of the April 22 proceedings. The district judge re-
sponded that he “was out of town yesterday,” perhaps to
suggest that he had not had a chance to look at them. In any
event, the second day of hearings reflected a different tone
from the one that prevailed at the end of the first. Toward
the end of the April 14 hearing, the court indicated that the
career-offender enhancement was inappropriate for Boat-
man and that it was prepared to base the sentence on a 46- to
57-month Guideline range. It seemed receptive to Boatman’s
arguments about his drug addiction. But by the start of the
second hearing, the court was less sympathetic. It realized
that Tapia prevented it from imposing a sentence long
enough to permit completion of the drug treatment pro-
gram. And in the end, the court chose a sentence between
the lower range it had mentioned at the first hearing and the
higher range recommended by Boatman’s (correctly calcu-
lated) career-offender status.
Boatman does not explicitly challenge his sentence on the
basis of the interruption in the sentencing proceeding, nor
could he—there is no reason why a judge cannot continue a
No. 14-2081 7
sentencing hearing if that seems desirable. The real problem
seems to lie in the mixed signals from the two different days,
and the difficulty that creates in ascertaining exactly what
the court’s basis for the sentence was. It is unclear how the
court meant to integrate its comments at the two hearings.
The most natural understanding of what went on, however,
is to treat the April 14 comments as tentative and to rest our
analysis on the court’s statements at the April 22 hearing.
B
At sentencing, the judge must adequately “explain why
the sentence imposed is appropriate in light of the statutory
factors specified in § 3553(a).” United States v. Robinson, 435
F.3d 699, 701 (7th Cir. 2006). This explanation must go be-
yond mere lip service; it should “entail some discussion of
any significant argument the defendant has made with re-
spect to his characteristics that might bear on the length of
the sentence.” United States v. Schmitz, 717 F.3d 536, 541 (7th
Cir. 2013) (citation omitted). Although there is no rule re-
quiring the district court to review every factor in every case,
it touched on almost all of them here.
§ 3553(a)(1)—At the April 22 hearing, the court addressed
“the nature and circumstances of the offense and the history
and characteristics of the defendant” when it reviewed
Boatman’s criminal history, his age, and the details of the
crime. 18 U.S.C. § 3553(a)(1). It began by pointing out that
Boatman “would’ve been much luckier” if he had received a
longer sentence for one of his earlier offenses, presumably
because he would have been deterred from further crime or
he would have received help for his addictions. The court
then said it would “discount” some of Boatman’s earlier
criminal conduct because it was far in the past and not par-
8 No. 14-2081
ticularly egregious. It speculated that Boatman may be less
likely to return to crime because he is now middle-aged. The
court also discussed the circumstances of the offense. Refer-
ring to Boatman’s request for coins, it commented that
“there was a certain level of desperation in this based on
[Boatman’s] need for drugs.”
§ 3553(a)(2)—This factor covers the “need for the sen-
tence imposed”; the court addressed it in the course of dis-
cussing the seriousness of the offense. “The basic problem
with [Boatman’s] case,” the court reasoned, was that bank
robbery is a grave and violent offense. It regarded Boatman’s
threat of violence—“somebody confronting a teller and im-
plicitly or explicitly threatening deadly harm”—as some-
thing that weighed against the mitigating factors of his rela-
tively minor criminal history and his age. See, e.g., United
States v. Castaldi, 743 F.3d 589, 591 (7th Cir. 2014) (affirming
sentence where the “transcript makes clear that the judge
found that the devastating financial harm [the defendant]
inflicted … simply overwhelmed all of his arguments in mit-
igation”).
§ 3553(a)(3) & (4)—The court also discussed “the kinds of
sentences available” and “the kinds of sentence and the sen-
tencing range established for the applicable category of of-
fense.” It found the guidelines sentence to be “very high”
and observed that no one—not the government, not Boat-
man, not the Probation Office—believed that an in-range
sentence was appropriate. In fact, the court noted, the gov-
ernment’s recommendation was “significantly lower than
the bottom” of the range.
In light of this explicit treatment of the points Boatman
had raised, there is no basis for finding that the district court
No. 14-2081 9
committed procedural error. See United States v. Grigsby, 692
F.3d 778, 791 (7th Cir. 2012). His case looks nothing like
those in which we have vacated sentences for insufficient
explanations. Boatman directs our attention to United States
v. Vidal, 705 F.3d 742 (7th Cir. 2013) and United States v. Mi-
randa, 505 F.3d 785 (7th Cir. 2007), but neither case helps
him. In Vidal, we concluded that remand for resentencing
was required for the district court to take a closer look at de-
fendant’s psychiatric issues, because the court’s statement
gave us no insight into the judge’s evaluation of that condi-
tion. Similarly, in Miranda the court’s brief mention of the
defendant’s mental illness was not enough to explain what
weight, if any, it gave to his schizoaffective disorder.
It is true that the court in Boatman’s case could have said
more. It did not offer a personalized evaluation of Boatman’s
addiction, nor did it review on the record any of the evi-
dence Boatman submitted in his sentencing memorandum.
And that evidence was extensive. It included an individual-
ized report by a certified addiction counselor, James Tiben-
sky, about Boatman’s condition; a publication by the Na-
tional Institute of Drug Abuse and a publication by the
American Medical Association, both citing long-term studies
that establish the effectiveness of drug-treatment programs
for incapacitation; and a speech by then-Attorney General
Holder suggesting the same. Taken together, these materials
provide strong support for the position that the national
strategy of incarcerating drug addicts has been ineffective.
Drug treatment programs, they contend, would do more to
reduce recidivism, and Boatman is one of many prisoners
who would benefit from such a shift. The court’s failure to
address this well-supported argument is troubling. When a
defendant submits individualized reports and scientific
10 No. 14-2081
studies in support of his sentencing memorandum, the bet-
ter practice is for the court to address these materials specifi-
cally.
Nonetheless, unlike the judge in Vidal who mechanically
adopted the probation officer’s report, 705 F.3d at 743, the
judge here told Boatman that the court had considered the
“significant focus” of the April 14 hearing on Boatman’s
drug use as well as the supplemental briefing on the Pro-
gram and that this information had affected the final sen-
tence. In the judge’s words, if he had “not viewed much of it
as a mitigation in his case, the sentence would’ve been 120
months not 76 months.” While more would have been help-
ful, the court said enough on the record to assure us that it
had considered Boatman’s argument and, more, that Boat-
man’s submission had contributed to the below-guidelines
sentence.
The court acknowledged that Boatman had submitted,
“interwoven with the history and analysis of his drug prob-
lems,” evidence “that therapeutic interventions … for which
he has volunteered would lessen his danger to the communi-
ty.” As it was entitled to do, it decided how much weight to
give to that evidence. Right after the earlier comment, it said
that “[t]he thing that got me to the sentence here that I im-
posed had more to do with retributive aspect of the law and
the incapacitation aspect which are two of the four purposes
which underlie all sentencing.” In short, the court concluded
that Boatman’s drug use and the promising empirical evi-
dence about drug treatment did not outweigh the need for
retribution and incapacitation. See, e.g., United States v.
Dachman, 743 F.3d 254, 262 (7th Cir. 2014); United States v.
Haskins, 511 F.3d 688, 696 (7th Cir. 2007).
No. 14-2081 11
If the court had not given a reason for rejecting the re-
quest for time served and had not recommended that the
Bureau of Prisons consider therapeutic alternatives, Boat-
man’s appeal would be more compelling. But it explained its
action by reference to the seriousness of the offense, a factor
it is required to consider under § 3553(a)(2). See Schmitz, 717
F.3d at 541 (citing Rita v. United States, 551 U.S. 338, 356
(2007)). Furthermore, when Boatman’s lawyer asked the
court to recommend the Program, the judge responded, “I
will recommend consideration of therapeutic alternatives to
drug use.” And it kept that promise. The fact that the court
asked the Bureau to consider alternative drug treatment
while Boatman is in custody reveals that the judge was well
aware of Boatman’s principal argument, which focused on
the benefits of drug rehabilitation. These two comments—
rejecting time served because of the gravity of the offense
and recommending that the Bureau consider therapeutic al-
ternatives—reassure us that the judge meaningfully consid-
ered Boatman’s principal request.
III
While the district court did not respond in terms of the
empirical evidence or the mitigation expert’s report that
Boatman submitted, it did meaningfully consider Boatman’s
request by explaining how that request was outweighed by
other § 3553(a) factors. The court considered Boatman’s
principal argument for drug treatment but was unpersuaded
in light of the seriousness of the bank robbery. Its resolution
of these matters did not stray beyond the bounds of its dis-
cretion, and so its sentence is AFFIRMED.