December 13, 2017
from the United States District Court for the Eastern
District of Wisconsin. No. 15-cr-00081 - William C.
Griesbach, Chief Judge.
Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.
Manion, Circuit Judge.
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.
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
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.
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
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.
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.
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
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
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 ...