United States v. Antonio Brown

NONPRECEDENTIAL DISPOSITION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 July 7, 2020
Decided July 27, 2020
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 19-3478
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v. No. 1:19-CR-00072(1)
ANTONIO BROWN, Ronald A. Guzmán,
Defendant-Appellant. Judge.
ORDER
Antonio Brown pleaded guilty to unlawful possession of a firearm, 18 U.S.C.
§ 922(g)(1), and was sentenced to 82 months in prison—a length twice the high end of
the Guidelines range. Because the district court adequately justified its above-
Guidelines sentence, we affirm the judgment.
Seven months after his release from an Illinois state prison (he served four years
for attempted armed robbery), Brown again encountered law enforcement. He was
riding in the passenger seat of a stolen car when Chicago police stopped and searched
the vehicle. Underneath the passenger-seat cushion, the officers found a semiautomatic
pistol with an extended-capacity magazine holding 19 live rounds of ammunition. On
the floorboard under the passenger seat, they found another large-capacity magazine
No. 19-3478 Page 2
with 42 live rounds. Given his prior felony, Brown was charged with, and pleaded
guilty to, one count of unlawfully possessing a firearm. See 18 U.S.C. 922(g)(1).
The government and the PSR both recommended a sentence within the
applicable Guidelines range of 33 to 41 months. The government emphasized that the
gun was “extra dangerous” and that the “only possible purpose” for carrying 61 rounds
of ammunition would be “to rain down a large amount of bullets in a short amount of
time.” The offense was not a “one-time, split-second mistake,” the government urged,
pointing out that Brown’s prior felony also involved a gun and that he had posted to
social media several homemade rap videos and photos of him flashing firearms.
Brown argued for a below-Guidelines sentence of 24 months. His counsel
discussed the mitigating circumstances of Brown’s upbringing, noting, for instance, that
he “was raised in a community of violence.” Counsel also highlighted reasons why
Brown was a strong candidate for rehabilitation: his prompt acceptance of
responsibility for the offense (he expressed a desire to plead guilty on just his third
court appearance); his supportive family; his plan to get married and find work; and his
completion of a GED while in pretrial detention, a feat the defense considered
“significant” because it shows “the potential [Brown] has to change his life.”
The judge sentenced Brown to 82 months in prison, double the top of the
Guidelines range, followed by three years’ supervised release. Central to the court’s
rationale was the likelihood that Brown intended to partake in a drive-by shooting of
the sort that ravages Chicago and kills innocent bystanders:
[I]t’s clear to me that a reasonable inference to be drawn from this set of
facts … is that the defendant was apparently meant to be the shooter in yet
another Chicago-style drive-by shooting. … This is where perpetrators are
armed with semiautomatic weapons, [and they] spray bullets as fast as they
can as their car passes by their designated target. … As often as not,
innocent people are killed by stray bullets. As often as not, children are
wounded or killed. … People have been injured while passing the time in
their front lawns, while watching television inside their own living rooms.
Children have to be walked to school through so-called “safe-zones,” which
are not safe, in order to protect them.
The judge denounced the “consistent, relentless violence” caused by drive-by shootings,
emphasizing that nearly 2,000 such shootings had taken place in Chicago that year. “No
one,” the judge added, “should have to live with people like this defendant driving
No. 19-3478 Page 3
around their neighborhoods in automobiles with half a hundred bullets and guns to
shoot them.”
The judge then addressed Brown’s personal attributes, which he believed made
Brown a “poor candidate for rehabilitation.” At 25 years of age, Brown had not held a
job for “more than seven months,” and he committed the unlawful-possession offense
within a year of being released from prison. The judge also deemed Brown
“unrepentant,” noting that he posted photos of firearms to social media “[i]n spite of
the fact that his siblings ha[d] been killed … and that he himself ha[d] been shot on
multiple occasions.” An above-Guidelines sentence was “absolutely necessary,” the
judge concluded, because Brown’s prior “48 months [in state prison] was totally
insufficient to even delay, much less deter, repetitive criminal conduct.”
Given our deferential abuse-of-discretion standard of review, Brown faces an
uphill battle in challenging the length of his sentence. See Gall v. United States, 552 U.S.
38, 51 (2007). On the other hand, when, as here, a district court imposes a sentence that
includes an extreme variance, it must offer a more compelling justification consistent
with the factors listed in 18 U.S.C § 3553(a). See id. at 49–50. We are more likely to
uphold a sentence as reasonable if the district court’s rationale is sufficiently
particularized to the circumstances of the case. United States v. Bradley, 675 F.3d 1021,
1026 (7th Cir. 2012); see also United States v. Miller, 601 F.3d 734, 739–40 (7th Cir. 2010).
Brown primarily contends that his sentence was unreasonable because the judge
based the extreme upward variance on speculation that Brown intended to participate
in a drive-by shooting. The judge focused on rampant gun violence in Chicago, a
rationale Brown calls “neither reasonable nor appropriate” because he himself had not
been accused of participating—or intending to participate—in any shooting incidents.
True, the judge’s inference that Brown is a likely candidate to participate in a drive-
by shooting was speculative and thus would not by itself have compelled such a
significant variance. Nothing in the record—apart from the fact of Brown’s proximity in
the car to a loaded gun—suggests that a drive-by shooting was his aim. To the extent the
judge meant for the sentence to generally deter drive-by shootings, doing so would be
improper if it were unrelated to the underlying facts of the case: “[I]t is inappropriate to
blame [a defendant] for issues of broad local … scope that only tangentially relate to his
underlying conduct.” United States v. Robinson, 829 F.3d 878, 880 (7th Cir. 2016) (vacating
the sentence when the “court engaged in several wide-ranging soliloquies on urban
decay” that “had no basis in the record”) (quotation marks omitted) (alteration in
original).
No. 19-3478 Page 4
Even so, the judge offered other reasons consistent with § 3553(a) that support the
upward variance. See Bradley, 675 F.3d at 1026 (noting that an improper consideration “is
just one of many reasons the judge gave for a sentence outside the guidelines range, the
sentence will be affirmed”) (quotation marks omitted). The judge explained that the
upward variance was necessary to account for the circumstances of the offense (the
quantity of ammunition and the fact that the offense occurred less than a year after
Brown’s release from prison); deterrence (his prior sentence of 48 months was
“insufficient to delay, much less deter” further criminal activity); and Brown’s history
and characteristics (his sparse employment record, prior gun-related conviction, lack of
repentance, and evident pride in his association with guns—as reflected in social-media
posts—despite the fact that he and his siblings had previously been shot). In light of these
determinations and even without crediting the judge’s speculation that Brown was
planning to participate in a drive-by shooting, the upward variance was reasonable.
Brown also argues that two of the judge’s stated reasons for the upward variance
were impermissible: his unemployment record and criminal history. He contends that
the policy statements under the Sentencing Guidelines bar the district court from
considering his unemployment record as a basis for an upward departure. See U.S.S.G
§ 5H1.5 (“Employment record is not ordinarily relevant in determining whether a
departure is warranted.”). But the policy statements, like the Guidelines themselves, are
advisory, see United States v. Booker, 543 U.S. 220, 246–47 (2005), so the “consideration of
[a defendant’s employment history] is not strictly prohibited,” United States v. Ross,
501 F.3d 851, 854 (7th Cir. 2007). Finally, Brown maintains that the judge could not base
an upward variance on his criminal history because it was already accounted for in the
calculated Guidelines range. But the judge was “entitled to consider the defendant’s full
criminal history and to impose a sentence tailored to his record.” United States v.
Vasquez-Abarca, 946 F.3d 990, 995 (7th Cir. 2020); see also United States v. Kuczora, 910 F.3d
904, 908 (7th Cir. 2018).
AFFIRMED