United States v. Ricky Hatch

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1282
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICKY HATCH,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 CR 385-1 — Ronald A. Guzmán, Judge.
____________________
ARGUED NOVEMBER 15, 2018 — DECIDED NOVEMBER 29, 2018
____________________
Before BAUER, KANNE, and ST. EVE, Circuit Judges.
PER CURIAM. Ricky Hatch pleaded guilty to trafficking
firearms from Indiana into Chicago. See 18 U.S.C. §§ 922(a)(3),
924(a)(1)(D). The district judge sentenced him above the Sen-
tencing Guidelines’ recommended range. The judge reasoned
that the rise of gun violence in Chicago meant that the Sen-
tencing Guidelines did not adequately reflect the seriousness
2 No. 18-1282
of Hatch’s offense or sufficiently deter firearm trafficking. Be-
cause the judge may depart from the Guidelines based on lo-
cality-specific factors, we affirm the judgment.
Hatch illegally brought handguns into Chicago three
times. The first time, accompanied by Juwan Kemp, a large-
scale Chicago gun dealer, he went to Indiana where an arms
dealer informed him that he would sell guns to Indiana resi-
dents only, and so Hatch used his friend, Brittany Driver, who
had an Indiana ID, to purchase seven pistols before returning
to Chicago. Hatch made two more similar trips, paying over
$2,700 cash altogether for 17 guns. Over the next year, Chi-
cago police recovered five of these guns—some from felons
and one even from a minor.
Federal authorities initiated an investigation. Hatch told
Driver not to divulge any information to law enforcement, but
she admitted anyway that she purchased guns for him. Hatch
told a probation officer that he was a straw buyer for Kemp:
he bought the guns for Kemp and did not know why Kemp
wanted them. Hatch was indicted and pleaded guilty to un-
lawfully transporting firearms.
The district judge sentenced Hatch above the Guidelines
to a 55-month prison term. The judge calculated a Guidelines
range of 30 to 37 months based on an offense level
of 19—which included a three-level reduction for accepting
responsibility, see U.S.S.G. § 3E1.1—and a criminal history
category of I. See U.S.S.G. Ch. 5, pt. A. He then applied the
factors set forth in 18 U.S.C. § 3553(a). Regarding Hatch’s his-
tory and characteristics, the judge said that his family, job,
and lack of prior felonies “appear to be in his favor.” But, the
judge continued, the nature of the offense was “troubling,”
No. 18-1282 3
and Hatch failed to accept responsibility fully because he de-
nied knowing what the guns were for. The judge gave statis-
tics, attributing the spike in Chicago’s homicides to guns from
Indiana: Chicago was responsible for 20% of the nation’s 8%
increase in homicides in 2016, most of those homicides in-
volved illegal guns, and 21% of illegal guns recovered in Chi-
cago are traceable to Indiana. And he observed that Indiana
has less restrictive gun laws than Illinois. He then discussed
the effect of gun violence in the city:
Almost daily the citizens of Chicago are bombarded
with news stories of the gun violence that plagues
this city. Children have been shot while playing in
front of their own homes. Residents have been in-
jured by stray bullets while inside their homes
watching television. School children need to be es-
corted to school through “safe zones.”
(R. 94 at 47.)
“I … do not believe,” the judge concluded, “that the Sen-
tencing Guidelines as they are structured today adequately
reflect the seriousness of this particular type of offense as it
relates to this geographic area.” The range, would “neither
promote respect for the law nor deter others … from commit-
ting these offenses.” (Id. at 48.)
On appeal, Hatch raises a series of procedural challenges.
First, noting the prevalence of gun violence in cities across the
country, he argues that the judge did not adequately explain
why the Guidelines sentence was insufficient in this “run-of-
the-mill” case.
But the judge adequately explained how he considered lo-
cal factors and why he categorically disagreed with the
Guidelines. Judges may disagree with the Guidelines based
4 No. 18-1282
on their own penal theory, see Spears v. United States, 555 U.S.
261, 265–66 (2009); United States v. Corner, 598 F.3d 411, 415
(7th Cir. 2010) (en banc), and in doing so, they may consider
“locality-based categorical factor[s].” United States v. Cavera,
550 F.3d 180, 195 (2d Cir. 2008) (en banc); United States v. Flo-
res-Machicote, 706 F.3d 16, 22–23 (1st Cir. 2013) (judges may
consider “community-based and geographic factors”);
see also United States v. Reyes-Hernandez, 624 F.3d 405, 421
(7th Cir. 2010) (judges may consider local availability of fast-
track programs). Here, the judge discussed the rise in Chi-
cago’s gun violence and concluded that a rise in local crime
made the offense more serious than what the Guidelines con-
templated. And in describing Chicago as “vulnerable” to the
flow of guns from Indiana, the judge also appropriately con-
sidered the need to deter the illegal transport of guns from a
state to another with a gun violence problem, see Cavera, 550
F.3d at 196.
Hatch likens his case to that of United States v. Robinson, in
which we vacated a drug dealer’s sentence because the sen-
tencing judge made irrelevant comments on broad issues of
local and national scope that “undermine[d] our confidence
in the fairness of the proceeding.” 829 F.3d 878, 880 (7th Cir.
2016). Hatch asserts that the judge wrongly held him respon-
sible for Chicago’s spike in gun violence, rather than his own
conduct. But this characterization overstates the judge’s ex-
planation. The judge merely situated Hatch’s offense against
the backdrop of statistics and observations about widespread
gun violence in Chicago—comments that hardly could be de-
scribed as “extraneous and inflammatory” and do not “cast[]
doubt on the validity of the sentence.” Robinson, 829 F.3d
at 880 (quoting United States v. Figueroa, 622 F.3d 739, 741
(7th Cir. 2010)).
No. 18-1282 5
Hatch next argues that the judge did not explain suffi-
ciently why the 55-month term complied with § 3553(a)’s par-
simony principle, which requires courts to impose prison
terms that are “sufficient, but not greater than necessary” to
achieve the goals of sentencing. See 18 U.S.C. § 3553(a). To sat-
isfy the principle, the district judge “need not recite any magic
words,” United States v. Tyra, 454 F.3d 686, 687 (7th Cir. 2006);
indeed, we will uphold a sentence if the judge explains how
it reflects consideration of the § 3553(a) factors, United States
v. Mejia, 859 F.3d 475, 479 (7th Cir. 2017). Here, the judge ap-
propriately applied those factors. Beyond geographic issues,
the judge considered Hatch’s history and characteristics
(mostly “in his favor”), the nature of the offense (“troubling,”
and Hatch’s failure to fully accept responsibility “bothered”
him), the seriousness of the offense (“difficult to overstate”),
and the need for deterrence and respect for the law.
Hatch also asserts that the judge failed to consider ade-
quately his history and characteristics, such as his supportive
family, steady employment, and lack of criminal history. But
disagreement with how the judge weighs mitigating factors
generally does not warrant reversal. See United States v.
Warner, 792 F.3d 847, 856 (7th Cir. 2015). The judge consid-
ered Hatch’s family, job, and lack of felonious history “in his
favor,” and reasonably determined that other factors, includ-
ing his failure to fully accept responsibility for the offense, re-
quired a longer sentence.
Hatch then contends that the judge could not penalize him
under § 3553 for not accepting responsibility because he cred-
ited Hatch for accepting it under § 3E1.1 of the Guidelines. A
sentencing judge’s decision to apply a three-level reduction
under § 3E1.1, however, may differ from his analysis under
6 No. 18-1282
§ 3553(a), provided that the record supports that decision.
See United States v. Smith, 860 F.3d 508, 516–17 (7th Cir. 2017).
Here, the record shows that Hatch did not acknowledge that
he bought the guns for an illegal purpose, and the judge was
free to consider that fact as part of Hatch’s history and char-
acteristics.
Finally, Hatch challenges his sentence’s substantive rea-
sonableness. He argues that the judge’s emphasis on general
deterrence was unreasonable because the theory that longer
sentences deter illegal activity lacks empirical support. But
§ 3553(a)(2)(B) permits judges to consider general and specific
deterrence, among the other sentencing factors. See United
States v. Sunmola, 887 F.3d 830, 842 (7th Cir. 2018).
AFFIRMED