United States v. Louis Johnson , 685 F.3d 660 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3153
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L OUIS E. JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:10-cr-30155-DRH-1—David R. Herndon, Chief Judge.
S UBMITTED M AY 16, 2012—D ECIDED JULY 9, 2012
Before P OSNER, M ANION, and K ANNE, Circuit Judges.
P OSNER, Circuit Judge. The defendant, a former bailiff
and former nightclub owner, pleaded guilty to posses-
sion of a firearm by an unlawful user of a controlled
substance, 18 U.S.C. § 922(g)(3), and possession of an
unregistered firearm. 26 U.S.C. § 5861(d). The judge
sentenced him to 78 months’ imprisonment, the bottom
of the applicable guidelines range, which was 78 to 97
months. The defendant’s lawyer has filed an Anders brief,
2 No. 11-3153
seeking leave to withdraw on the ground that he can’t
find a colorable ground for an appeal.
The only possible such ground is the judge’s decision
not to give a below-guidelines sentence despite the de-
fendant’s age, a question discussed at length at the sen-
tencing hearing, where his lawyer argued that the de-
fendant should get a shorter sentence than 78 months
(six and a half years) because he is (or rather was, at
sentencing) 70 years old (he is now 71) and so might
die before he was released from prison. The judge con-
sulted the Census Bureau’s life-expectancy table and
found that the life expectancy of a black male aged 70
is 12.4 years. So even without any time off for good be-
havior, which would reduce his time served by a maxi-
mum of 10 months and thus to 5 years and 8 months,
the defendant’s sentence does not exceed his life expec-
tancy.
Which raises two questions: the bearing of old age on
sentencing, and the bearing of life expectancy on sen-
tencing.
The propensity to engage in criminal activity declines
with age, and is, on average, sharply lower for persons
over 70—although persons 65 and older are 13 percent
of the population, they account for only seven tenths of one
percent of arrests. FBI, “Crime in the United States: Arrests
by Age, 2010,” www.fbi.gov/about-us/cjis/ucr/ crime-in-
the-u.s/2010/crime-in-the-u.s.-2010/tables/10tbl38. xls; U.S.
Census Bureau, “The Older Population: 2010” 2 (Nov.
2011), www.census.gov/prod/cen2010/briefs/ c2010br-
09.pdf (both visited on June 1, 2012); see also United States
No. 11-3153 3
v. Bullion, 466 F.3d 574, 577 (7th Cir. 2006); Catherine F.
Lewis et al., “A Study of Geriatric Forensic Evaluees: Who
Are the Violent Elderly,” 34 J. Am. Academy of Psychiatry &
Law 324, 324 (2006); Richard A. Posner, Aging and Old Age
128-33, 310-15 (1995). There is both an aging effect and a
selection effect: the cost of acquiring criminal skills in-
creases with age, and career criminals, who already possess
such skills, are likely to retire from crime before reaching
old age because repeated crimes bring increasingly heavy
sentences. Id. at 132-33. Persons convicted of a crime
committed when they are 70 or older are thus unlikely
to commit further crimes even if released after a short
term of imprisonment. Cf. U.S. Sentencing Commission,
“Measuring Recidivism: The Criminal
History Computation of the Federal Sentencing Guide-
lines” 12, 28 (May 2004),www.ussc.gov/Research/
Research_Publications/Recidivism/200405_Recidivism_
Criminal_History.pdf (visited June 1, 2012).
And so the Sentencing Guidelines state that “age may be
a reason to depart downward in a case in which the
defendant is elderly and infirm and where a form of
punishment such as home confinement might be equally
efficient as and less costly than incarceration.” U.S.S.G.
§ 5H1.1 (Age Policy Statement); see also United States v.
Bullion, supra, 466 F.3d at 576. But this general rule must
have exceptions. The 70-year-old criminal is a rara avis,
and by engaging in criminal activity at such an age pro-
vides evidence that he may be one of the few oldsters
who will continue to engage in criminal activity until
they drop. This may well be the case of our defendant,
as the district judge explained in a thoughtful sentencing
statement.
4 No. 11-3153
The defendant is devoted to guns and drugs. He hosts
parties in his home at which he and his guests consume
crack cocaine and marijuana, and he not only buys
guns but admits to sometimes selling them in his crime-
ridden neighborhood. There is the ominous fact that
because of frailty the elderly are more prone than
young criminals to use guns in crime, rather than less
lethal weapons, Lewis et al., supra, at 330, though our
defendant does not appear to be a violent crimi-
nal—moreover he is not frail! He is 6'7" tall and weighs
230 pounds, and is in good health (or at least was
when sentenced less than a year ago). He is physi-
cally capable of continuing indefinitely to engage in
the illegal activities for which he was convicted and
sentenced.
And the likelihood of a criminal’s committing fur-
ther crimes when released from prison is of course
not the only consideration that a judge should weigh in
deciding how long a sentence to impose. Incapacitating
a defendant—preventing him from committing crimes
by keeping him in prison for a prescribed period—is
only one way of reducing the incidence of crime. Another
is deterrence. The threat of imprisonment is a deterrent,
and the threat of a longer imprisonment should have
a greater deterrent effect than the threat of a shorter one.
Suppose there were a rule that a person who commits
a crime after his seventieth birthday can be sentenced to
no more than six months in prison, lest he die there.
Then those oldsters who like the defendant in our case
do not terminate their criminal careers upon reaching
No. 11-3153 5
that milestone will have only a weak disincentive to
commit further crime—especially if the probability of
apprehension of and conviction for the crimes in
which he habitually engages is low. For the expected cost
of punishment is a function of the likelihood of being
punished as well as of the severity of the punishment
if imposed.
This discussion should make clear that the sentence
imposed by the district judge was reasonable and that
the defendant’s current lawyer was quite right to
disclaim the existence of a colorable ground for chal-
lenging the appeal.
But what of life expectancy, and specifically of tables of
life expectancy? What role should they play in sentencing?
Life-expectancy tables lump together large numbers of
people who have only a few things in common, such as,
in this case, age, race, and sex. The set of black men aged
70 to 74, estimated by the Census Bureau to have included
345,000 men in 2010, U.S. Census Bureau, “Table 15.
Projections of the Black Alone Population by Age and
Sex for the United States: 2010 to 2050,” www.census.gov/
popu lation/w w w/projections/files/nation/sum m ary/
np2008-t15.xls (visited June 1, 2012), actually contains a
range of life expectancies. Some of these men will die
within the year; some will live to 100 or even a few years
beyond that; the rest will die in between the extremes.
All it means to say that the defendant when he was 70
had a life expectancy of 12.4 years is that the average
person in the heterogeneous group to which he belongs
(black 70-year-old men) can be expected to live 12.4
6 No. 11-3153
more years, implying that approximately half will die
sooner and the other half later. (It would be exactly half
if 12.4 were the median rather than average age of death
of members of the group.) It doesn’t mean that the de-
fendant will not die in prison; he very well may; the
probability that he will die before he is released can be
calculated, either from statistics concerning the ex-
perience of his group, or, with greater accuracy, from
more refined statistics that would narrow the group to
black 70-year-olds whose physical condition is similar
to the defendant’s. But even the most refined statistical
calculation of his life expectancy will leave considerable
residual uncertainty.
We have wrestled in previous cases with the ques-
tion whether life expectancy statistics should figure
in sentencing for offenses for which Congress has not
authorized a life sentence. Our court has concluded, as
have other courts, that a sentence which although it is a
term of years is likely or even certain to be a de facto
life sentence because of the defendant’s age is improper if
the statute under which he was convicted provides that
only a jury can authorize a life sentence (18 U.S.C. § 34,
applicable to certain drug offenses). United States v. Martin,
63 F.3d 1422, 1432-34 (7th Cir. 1995), abrogated on other
grounds by Jones v. United States, 529 U.S. 848, 850-51
(2000); United States v. Martin, 115 F.3d 454 (7th Cir. 1997);
United States v. Martin, 100 F.3d 43, 46, 48 (7th Cir. 1996);
United States v. Prevatte, 66 F.3d 840, 846-49 (7th Cir. 1995)
(concurring opinion); United States v. Tocco, 135 F.3d 116,
131-32 (2d Cir. 1998); United States v. Gullett, 75 F.3d 941,
950-51 (4th Cir. 1996); United States v. Williams, 775 F.2d
No. 11-3153 7
1295, 1299 (5th Cir. 1985); United States v. Hansen, 755 F.2d
629, 631 (8th Cir. 1985). This is not such a case. The defen-
dant’s age and physical condition do not make his sentence
a de facto life sentence. And if it did, it would just be one
more consideration that the judge might be asked to weigh
in determining the sentence, properly so if the prospect of
dying in prison is thought to make a sentence of otherwise
appropriate length harsher.
The motion to withdraw is granted and the appeal is
D ISMISSED.
7-9-12