United States v. Yarmell Austin

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 23, 2019
Decided February 15, 2019
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18-1604
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 16 CR 359
YARMELL AUSTIN,
Defendant-Appellant. John Z. Lee,
Judge.
ORDER
In this appeal, Yarmell Austin challenges the sentence he received for being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court
erred, he contends, by relying in part on the general plague of illegal gun use in
Chicago as a reason to impose Austin’s 70-month sentence. Austin also argues that one
of the conditions of his supervised release—the one that requires him to remain in the
district court’s “jurisdiction”—is unconstitutionally vague. We conclude that the judge’s
No. 18-1604 Page 2
reference to gun violence does not require reversal, but we find merit in Austin’s point
about supervised release, and so we remand this case to the district court for the sole
purpose of modifying that condition.
I
On the night of August 10, 2015, around 2:00 a.m., Austin was bicycling on the
west side of Chicago. After he rode through an alley and onto a sidewalk, two nearby
police officers approached him to talk. Before they reached him, Austin fled. As he
pedaled away, he held a black object, which one officer believed to be a gun. The two
officers pursued him, first by car and then on foot. As one of them came close, Austin
hopped off his bicycle, ran through a gangway of a private residence, and tossed the
black object aside. One of the officers finally caught him in the backyard, while the
second officer recovered the thrown object, which later was identified as a loaded .22
caliber firearm.
Austin was indicted for possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1).
(He previously had been convicted of aggravated robbery and possessing a controlled
substance.) After a trial, a jury found him guilty and a presentence investigation report
(PSR) was prepared. It stated that Austin’s total offense level was 20 and that he had a
criminal history category of VI, resulting in a recommended imprisonment range under
the U.S. Sentencing Guidelines of 70–87 months and a maximum supervised-release
term of three years.
At sentencing, the judge adopted the PSR’s guidelines calculations after Austin
had a chance to review the document with counsel. Austin argued for a 48-month
sentence, while the government asked for 87 months. The government based its request
on “the extreme violence and gun violence that plagues the City of Chicago” and
Austin’s status on parole for aggravated robbery, a crime of violence, see U.S.S.G.
§ 4B1.2(a). It added that gun violence “is usually perpetuated by individuals who are
convicted felons,” such as Austin. Therefore, it argued, a prison sentence of 87 months
was appropriate for general deterrence purposes, given “circumstances in Chicago” and
“across the country with gun violence.”
In assessing the nature and circumstances of Austin’s offense, the court echoed
the government’s concern about violence. It stated:
[I]llegal possession and use of guns has caused devastation throughout our
communities, particularly here in Chicago. It seems that hardly a day goes
by without reading about another shooting in the city caused by the
proliferation of handguns.
No. 18-1604 Page 3
The court ultimately imposed a sentence within the recommended guidelines range:
70 months’ imprisonment and 3 years’ supervised release. In doing so, it stated that it
was imposing the following condition of supervised release:
He shall remain within the jurisdiction where he is being supervised. That
is by jurisdiction I mean the federal district, jurisdiction, where the District
Court sits, unless he is granted permission to leave by the Court or the
probation officer.
The written judgment reflects this condition by ordering Austin to remain within
the court’s “jurisdiction.”
II
Austin first argues that the court erred by relying on Chicago’s gun violence as a
reason for imposing Austin’s sentence. We review de novo the question whether a
district court committed procedural error at sentencing. United States v. Dachman,
743 F.3d 254, 261 (7th Cir. 2014).
“[A]fter giving both parties an opportunity to argue for whatever sentence they
deem appropriate,” a sentencing judge “should then consider all of the § 3553(a) factors
to determine whether they support the sentence requested by a party.” Gall
v. United States, 552 U.S. 38, 49–50 (2007). These factors include “the nature and
circumstances of the offense,” 18 U.S.C. § 3553(a)(1), and the need for “adequate
deterrence to criminal conduct,” 18 U.S.C. § 3553(a)(2)(B). In addressing those factors, a
sentencing judge may consider “locality-based categorical factor[s]” such as “the rise in
Chicago’s gun violence” when sentencing a defendant. United States v. Hatch, 909 F.3d
872, 875 (7th Cir. 2018) (relying on United States v. Cavera, 550 F.3d 180, 195 (2d Cir.
2008) (en banc)); United States v. Flores-Machicote, 706 F.3d 16, 22–23 (1st Cir. 2013). A
judge may not, however, blame a defendant for problems of broad local, national, and
international scope that relate only tangentially to the defendant’s underlying conduct.
United States v. Robinson, 829 F.3d 878, 880 (7th Cir. 2016).
Our review of the sentencing transcript as a whole satisfies us that the district
court adhered to these principles. In assessing the nature of Austin’s offense of illegal
gun possession, the judge permissibly observed that the “illegal possession and use of
guns has caused devastation throughout our communities, particularly in Chicago.” See
Hatch, 909 F.3d at 875. It is true, but not important, that the judge in Hatch cited statistics
about gun violence in Chicago when situating the defendant’s offense, 909 F.3d at 875,
and here the judge did not. Rather, the judge relied on his personal experience when he
noted that “hardly a day goes by without reading about another shooting in the
No. 18-1604 Page 4
city… .” Hatch does not mandate the use of formal statistics; it merely permits a judge to
allude to them in considering locality-based factors. See 909 F.3d at 875. Further, the
judges in Hatch and the cases on which it relies all imposed above-Guidelines sentences.
Hatch, 909 F.3d at 874; Cavera, 550 F.3d at 185; Flores-Machiote, 706 F.3d at 25. As the
Supreme Court said in Gall, a district judge “must explain his conclusion that an
unusually lenient or an unusually harsh sentence is appropriate in a particular case
with sufficient justifications.” Gall, 552 U.S. at 46. Because Austin’s sentence, at 70
months, was within—indeed, at the bottom of—the guidelines range, exacting empirical
data was unnecessary.
Austin nonetheless replies that two decisions of this court require reversal, but
he is incorrect. First, he relies on Robinson, 829 F.3d at 880. There, the sentencing judge
decried local and national problems of “urban decay” and “social unrest,” ranging from
Milwaukee’s 1967 riots to then-recent protests in Baltimore, Maryland. Id. The judge
appeared to hold a “grudge” against Robinson for all this, even though Robinson, who
had pleaded guilty to a drug crime, was not accused or convicted of violence, gun use,
or inciting a riot. Id. At Austin’s sentencing, by contrast, the judge limited his comments
to the devastation caused by illegal gun possession—the very crime that Austin
committed—in Chicago, coupled with Austin’s personal criminal history, which
included a crime of violence. Austin also relies on United States v. Figueroa, 622 F.3d 739,
743–744 (7th Cir. 2010). Figueroa, who is of Mexican descent, was convicted of drug
crimes. In sentencing him, among other inappropriate comments, the district judge
“lashed out at illegal immigration, occasionally referring to ‘you people’ or ‘those
people.’” Id. at 743. The judge then linked this country’s illegal drug-use problem “to
Mexico, then to Colombia and Venezuela, and then to Iranian terrorists through the
person of Venezuelan President Hugo Chávez.” Id. These comments “undermined
anything else the court said” (even its references to the § 3553(a) factors). Id. at 744.
Nothing resembling that digression occurred in Austin’s case.
Austin also challenges the supervised-release condition requiring him to remain
in the district court’s “jurisdiction.” He says that the condition is unconstitutionally
vague for two reasons: the condition lacks an explicit scienter requirement and it does
not define “jurisdiction.” But Austin’s first point is easily refuted; this
supervised-release condition need not contain a scienter requirement. United States
v. Poulin, 809 F.3d 924, 931 (7th Cir. 2016). True, in United States v. Kappes, this court
observed that the condition that “the defendant shall not leave the judicial district
without … permission would be improved” by adding an explicit scienter requirement,
especially when a defendant resides near the boundary of two judicial districts. 782 F.3d
828, 849–50 (7th Cir. 2015). But in Poulin, we later clarified that the inclusion of a
No. 18-1604 Page 5
scienter requirement, while recommended, is not mandatory. 809 F.3d at 931; see
also United States v. Givens, 875 F.3d 387, 390 (7th Cir. 2017).
Austin’s second argument about the condition fares only slightly better. Austin
argues that the judge needed to explain what he meant by the word “jurisdiction” so
that Austin, a non-lawyer who never finished high school, could understand it. A judge
need only explain the term “jurisdiction” so that a reasonable defendant would
understand it. See United States v. Ortiz, 817 F.3d 553, 555 (7th Cir. 2015); Kappes,
782 F.3d at 849–50. In United States v. Hudson, this court rejected the argument that
“jurisdiction” is vague simply because the defendant was personally ignorant of the
district’s geographic boundaries; these boundaries are readily and objectively verifiable.
908 F.3d 1083, 1085 n.2 (7th Cir. 2018). The judge here gave an adequate oral explanation
at sentencing by telling Austin that “by jurisdiction I mean the federal district,
jurisdiction, where the District Court sits.” The term “federal district” conveyed
geographical rather than legal boundaries, and its geography is described in 28 U.S.C.
§ 93(a). Cf. U.S.S.G. § 5D1.3(c)(3) (“The defendant shall not knowingly leave the federal
judicial district where he or she is authorized to reside without first getting permission
from the court or the probation officer.”) (emphasis added).
The court in Hudson remanded the sentence for a limited purpose, and we think
that Austin’s sentence should be treated in the same way, so that the written judgment
conforms to the controlling oral judgment. The travel restriction in Hudson’s written
judgment, as with Austin’s, used the word “jurisdiction.” Hudson ordered the district
court to substitute the term “judicial district” for the word “jurisdiction” in order to
reflect geographical boundaries. 908 F.3d at 1084–85. Although the government weakly
protests, we prefer to follow Ortiz, which specifically states that there is “no reason to
think” that a defendant would understand what “jurisdiction” meant, and what the
boundaries of that area are. 817 F.3d at 555.
We therefore AFFIRM the district court’s judgment in all respects except the use
of the word “jurisdiction” in Discretionary Condition of Supervised Release #14. With
respect to that point only, we remand this case to the district court so that it can
substitute the “judicial district” for the word “jurisdiction” in the written judgment.