Opinion
23-1640
02-29-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TONY ROSS, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Argued December 7, 2023
Appeal from the United States District Court for the Southern District of Illinois. No. 3:22-CR-30047-SPM Stephen P. McGlynn, Judge.
Before DIANE P. WOOD, Circuit Judge THOMAS L. KIRSCH II, Circuit Judge CANDACE JACKSON-AKIWUMI, Circuit Judge
ORDER
Tony Ross pleaded guilty to one count of illegally possessing a firearm. At sentencing, the district court calculated Ross's Sentencing Guidelines range to be 37 to 46 months, then sentenced him to a term of imprisonment of 90 months. Ross brings procedural and substantive challenges to his sentence. Because the district court provided an adequate explanation for a sentence that was neither excessively harsh nor procedurally improper, we affirm.
In April 2022, Illinois state police officers arrived at a Jack in the Box in Collinsville, Illinois, to locate and interview Tony Ross, who was working in the kitchen. When Ross made eye contact with the officers, he removed a gun from his waistband and placed it underneath a fryer. The officers arrested Ross and recovered the gun. At the time, Ross knowingly had at least one felony conviction. Accordingly, the government charged him with one count of possession of a firearm by a felon under 18 U.S.C. §§ 922(g)(1) &924(a)(2). Ross pleaded guilty to the offense.
At sentencing, the district court calculated the Guidelines range to be 37 to 46 months. The government requested an above-Guidelines sentence of 84 months. Ross requested a sentence of 42 months. After hearing arguments from the parties, the court imposed a sentence of 90 months. In explaining its sentence, the district court relied on the following: (1) Ross's personal background, supportive family, and relatively favorable home life and upbringing, all of which the court concluded did not serve as a mitigating factor; (2) his concerning juvenile record, which, contrary to his assertion, can be considered in fashioning a sentence, see United States v. Johnson, 612 F.3d 889, 896 (7th Cir. 2010); (3) the troubling facts surrounding his prior crimes that the Guidelines did not adequately capture; (4) his continued affinity toward firearms despite his previous trouble with the law; and (5) a ballistics report tying his firearm to other violent crimes.
On appeal, Ross argues that the district court procedurally and substantively erred in imposing his above-Guidelines sentence. We review a procedural challenge de novo and a substantive challenge for abuse of discretion. United States v. Miller, 829 F.3d 519, 527 (7th Cir. 2016). Turning first to his procedural challenges, Ross argues that the district court erred (1) by not adequately explaining its sentence under 18 U.S.C. § 3553(a), see United States v. Jerry, 55 F.4th 1124, 1130 (7th Cir. 2022), and (2) by relying on inaccurate information in violation of his due process rights, see United States v. Chavez, 12 F.4th 716, 733 (7th Cir. 2021).
As to his first procedural challenge, Ross contends that the district court merely recited the § 3553(a) factors without providing compelling justification based on those factors for its above-Guidelines sentence. But the analysis of the sentencing factors "need not be exhaustive." United States v. Vasquez-Abarca, 946 F.3d 990, 993 (7th Cir. 2020) (quotation omitted); see also United States v. Hendrix, 74 F.4th 859, 867 (7th Cir. 2023) ("[T]he district court need not recite and apply every single § 3553(a) factor."). Here, the district court focused its sentencing explanation on the nature and circumstances of the offense, the need to deter criminal conduct, Ross's history and characteristics, and the need to protect the public from further crimes. It did not merely recite these factors without more. Rather, it provided a thorough analysis that applied these factors to Ross specifically. The court explained the severity of Ross's instant offense, the violent facts surrounding his previous crimes, the harm his protracted criminal conduct has imposed on his community, and his otherwise generally positive home life and personal history. This analysis adequately explained the district court's above-Guidelines sentence and showed sufficient consideration of the § 3553(a) factors.
For his second procedural challenge, Ross argues that the district court relied on inaccurate information at sentencing in two ways. He first challenges the district court's discussion of the surrounding circumstances of his prior crimes for which he did not plead guilty. For example, Ross's prior robbery conviction involved a murder. But because Ross only pleaded guilty to the robbery charge (and the murder charge was subsequently dropped), he asserts that the district court could only rely on his robbery conduct. "But a wide range of conduct is relevant at sentencing-including uncharged conduct and charges of which the defendant was acquitted-so long as that conduct is established by a preponderance of the evidence." United States v. Heckel, 570 F.3d 791, 797 (7th Cir. 2009) (citation omitted); see also U.S.S.G. § 4A1.3(a)(1). District courts can consider unadjudicated facts linked to a defendant's criminal history if reliable information supports those facts and the defendant fails to object to them. See United States v. Mansfield, 21 F.4th 946, 957-58 (7th Cir. 2021). The district court possessed that reliable information here. For instance, as to Ross's robbery conviction, the Presentence Investigation Report discussed multiple sources-arrest reports, probable cause statements, and eyewitness testimony-that described the crime, the underlying murder, and Ross's participation therein. Therefore, the district court was free to consider these unadjudicated facts, to which Ross made no objection, during sentencing.
Ross also contests the district court's reliance on the ballistics report that linked his firearm to other crimes. He argues that the report was unreliable and unsupported, but he waived this argument below. At his sentencing hearing, Ross accepted that the ballistics report linked the firearm to a homicide and noted that the report simply proves the fact that firearms get "passed around." He therefore knowingly relinquished any argument that the ballistics report was unreliable, precluding our review on appeal. See United States v. Hammond, 996 F.3d 374, 399 (7th Cir. 2021).
Ross's substantive challenge to his sentence likewise fails. A sentence is substantively unreasonable if it is "excessively harsh." Hendrix, 74 F.4th at 866. While "[a] guidelines-range sentence is presumptively reasonable," an above-Guidelines sentence "is not presumptively unreasonable." Id. at 866-67 (emphasis in original). When a district court imposes an above-Guidelines sentence, it "may ground its justification by reference to the section 3553(a) factors alone and need not frame its explanation in terms of a departure from the guidelines range." United States v. Gonzalez, 3 F.4th 963, 966 (7th Cir. 2021) (quotation omitted). An above-Guidelines sentence is more likely reasonable if it is based on factors sufficiently particularized to the individual circumstances of the case. United States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008).
Because the district court adequately explained its sentence based on the § 3553(a) factors with particularized justification as to Ross and his unique background, we cannot conclude that the 90-month sentence was excessively harsh. To be sure, we have affirmed similar sentences in the past that were significantly higher than the top end of the Guidelines range. See, e.g., Gonzalez, 3 F.4th at 968 (affirming a 72-month sentence when the Guidelines range was 33 to 41 months). Ross urges that his sentence will cause a disparity problem with similar defendants. But "[t]here is generally no disparity problem so long as the remainder of the sentencing explanation makes it plain that the disparity was warranted." United States v. Faulkner, 885 F.3d 488, 499 (7th Cir. 2018). The district court sufficiently explained the need for a disparity here.
Finally, Ross argues that the district court improperly attributed the other crimes mentioned in the ballistics report to him. We disagree. The district court acknowledged in its sentencing colloquy that Ross might not have possessed the gun when the crimes were committed, stating, "Maybe it's just bad luck that in April, you're found with a gun that was used in a homicide in another shooting just a few weeks earlier. If it wasn't your gun in February of 2022 or March of 2022, then whoever gave you the gun didn't do you a favor." Referencing the gun's links to other violent crimes supports a general concern about the seriousness of gun violence and illegal gun possession; such a discussion in sentencing is permissible. See, e.g., Hendrix, 74 F.4th at 870 (affirming a sentence notwithstanding the district court's discussion of the "scourge of gun violence" and death in Chicago, even though the defendant was only charged with felon in possession). More importantly, the district court did not place undue weight on the ballistics report. Its references to the report were brief, totaling no more than four sentences out of a lengthy colloquy, and merely linked Ross's firearm, not Ross himself, to other crimes committed in the community. In all, the district court neither procedurally nor substantively erred in imposing Ross's sentence.
AFFIRMED