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United States v. Ferguson

United States Court of Appeals, Seventh Circuit

May 2, 2018

United States of America, Plaintiff-Appellee,
Grover Coleman Ferguson, Defendant-Appellant.

          Argued December 13, 2017

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 15-cr-00081 - William C. Griesbach, Chief Judge.

          Before Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.

          Manion, Circuit Judge.

         When Grover Ferguson was 17 years old he shot a woman three times during a carjacking, causing significant permanent injury. Ferguson pleaded guilty to vehicular robbery by force and discharging a gun. The sentencing guidelines range was 198 to 217 months' imprisonment (16.5 to 18 years), but the district judge sentenced Ferguson to 600 months in prison (50 years). He appealed, and in United States v. Ferguson, 831 F.3d 850 (7th Cir. 2016), we vacated his sentence and remanded the case to a new judge, who imposed a 35-year sentence. Now Ferguson argues that the district court failed to adequately consider his youth as a mitigating factor and to properly explain the above-guidelines sentence. We affirm the judgment.

         I. Background

         In April 2015, 17-year-old Grover Ferguson stole a handgun from his mother. The next day, while high and drunk, Ferguson checked a gas station for a running car to steal. Not seeing one, he walked for hours. As it became dark, he saw a woman leave her home and approach her car. Ferguson said "hi" to her and the woman later said she did not feel threatened. She went into her house before coming outside again. As she walked to her car, Ferguson hid behind a tree and waited for her to unlock the car door. After the woman got in, Ferguson opened the passenger-side door, pointed a gun at her, and ordered her to give him the keys. The woman paused, initially thinking it was a joke. When he yelled, "Bitch, give me the keys, " she feared for her life.

         The woman placed the keys on the passenger seat, but still Ferguson shot her several times. Ferguson said that he thought the woman moved toward him, so he fired the gun and then walked to the driver's side and demanded the keys again as she crawled on the street. She was shot three times, including once in the face. The victim's niece and the niece's 4-year-old daughter witnessed the shooting from across the street, where they were gathering belongings from their car. When Ferguson saw the victim's niece, he shouted: "Bitch, get back in the car." Ferguson then started the victim's car and as she crawled to the curb to avoid being run over, he drove away.

         The police were nearby investigating another matter when they heard gunfire and quickly responded to the victim's location. They found her on the ground, bleeding from her face. The victim spent the next four days in the hospital; she survived but suffers permanent injuries, including blindness in one eye. She also suffers from irreparable nerve damage in her ear and face, numbness on the left side of her mouth, and daily pain. One of the bullets is still lodged in her face, and she can no longer drive. (Despite all this, the Social Security Administration denied her application for disability benefits.)

         The police caught Ferguson the day after the shooting, but not before he initiated a brief high-speed chase. After his arrest, he admitted taking the car and shooting the victim. Ferguson then pleaded guilty to vehicular robbery by force, 18 U.S.C. § 2119(2), and to discharging a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii), pursuant to a nonbinding plea agreement. Sentencing followed. The government recommended that the district court sentence Ferguson to 20 years' imprisonment; the defense recommended 15 years. But the court sentenced Ferguson to 50 years. Ferguson appealed, and we vacated the sentence because the district judge had not explained why a sentence within the guidelines range was so inadequate that a sentence more than 31 years longer than the top end was necessary. Ferguson, 831 F.3d at 855.

         At resentencing the parties jointly recommended a sentence of 20 years. The government's argument for that above- guidelines sentence focused primarily on the gruesomeness of the crime, the impact on the victim, and Ferguson's juvenile record. Defense counsel particularly emphasized Ferguson's age, and noted as well his acceptance of responsibility, remorse, and upbringing. Ferguson's post-arrest conduct was also discussed: a probation officer testified that Ferguson had been caught with a weapon in his prison locker but also admitted there was little evidence provided from the prison about that violation. Ferguson also had skipped a prison G.E.D. class five times, but he explained that there were scheduling mishaps when he was called to court and that he had some medical issues. Ferguson did not exercise his right to allocute, but he wrote a letter apologizing to the court and to the victim.

         In crafting the sentence, the judge began by analyzing the nature and circumstances of the offense. While acknowledging that the parties understood that Ferguson committed a horrendous crime, the judge explained that the charges and the sentencing guidelines underrepresented the seriousness of the offense. The judge explained that Ferguson was before him for vehicular robbery by force and for discharging a firearm during a crime of violence, but that discharging a firearm "can mean a lot of different things." "When I look at this crime, " the judge elaborated, "I see an attempted murder"- "intentional conduct" in which Ferguson "at point blank range shot a woman in the face." He shot her three times, left her to die, and would have driven over her had she not crawled out of the way.

         Continuing the analogy to attempted murder, the judge observed that the base-offense level for first-degree murder is 43, which results in an advisory life sentence. "If an attempt, you decrease by three levels, unless the Defendant completed all the acts the Defendant believed necessary for successful completion of the substantive offense, " the judge quoted, and then explained that he believed "the Defendant did everything he could, he reasonably would have believed necessary to take the life of this person." The judge went on to say that Ferguson was "not here for a life sentence" and that "apparently on the Constitution now I can't impose a life sentence even if I thought it appropriate, because he was two months shy of his 18th birthday at the time he committed this offense." But comparing the advisory sentence for attempted murder informed the judge's view of the magnitude of the offense.

         The judge next considered the impact of the crime on the victim. Here, Ferguson's actions will have a "lifelong impact" not only "physically disabling, but emotionally and psychologically harming her" as well as "harming those around her." "It's a miracle of modern medicine and a lot of good luck that this woman has the ability to be here today, and to speak to me and ask me to impose ...

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