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Judge’s “improper extraneous comments” require new sentencing hearing

United States v. Billy J. Robinson, Jr., 7th Circuit Court of Appeal Case No. 15-2019, 2016 WL 3947808, 7/22/16

A federal district judge’s sentencing comments “strayed so far from the record” that the Seventh Circuit Court of Appeals “cannot trace the (legitimate) reasons for Robinson’s sentence” and therefore Robinson is entitled to resentencing.

Robinson was convicted of heroin trafficking for his participation in a drug distribution ring in Milwaukee, including in neighborhoods the judge remembered from his college days. That fact, along with the judge’s references to events in other times and places, led the judge to discuss irrelevant and improper factors in his sentencing remarks:

In Robinson’s case, before imposing sentence the district court engaged in several wide-ranging soliloquies on urban decay, the changing nature of Robinson’s neighborhood, the “pathology” of certain neighborhoods, and the connection between Milwaukee’s 1967 riots and recent protests in Baltimore, Maryland. Sentences in criminal cases must be based only on the criteria authorized by Congress. See 18 U.S.C. § 3553. The court’s comments made at this sentencing were irrelevant and had no basis in the record. They therefore undermine our confidence in the fairness of the proceeding.

The sentencing hearing took a wrong turn by focusing on urban decay, social unrest, and the judge’s personal experiences in the relevant neighborhood. As we have said before, “it is inappropriate to blame [a defendant] for issues of broad local, national, and international scope that only tangentially relate to his underlying conduct.” [United States v.] Smith, 400 Fed.Appx. [96,] 99 [(7th Cir. 2010) (nonprecedential)] (citing [United States v.] Figueroa, 622 F.3d [739,] 743–44 [(7th Cir. 2010)]). …. (Slip op. at 3).

The court emphasizes that while “sentencing is an individual, and at times idiosyncratic, process,” this “does not excuse the court from its duty to ensure a fair process.” Figueroa, 622 F.3d at 743–44. It rejects the government’s claim that looking at the sentence as a whole, and ignoring the inappropriate comments, shows the district court provided enough of an explanation of its sentence for us to affirm. “We cannot do so here. Because the district court’s improper extraneous comments were interwoven with its consideration of the Section 3553(a) factors, ‘[w]e have no way of knowing how, if at all, these extraneous considerations influenced [Robinson’s] sentence.’” (Slip op. at 5-6, quoting Figueroa, 622 F.3d at 744).

Here are examples of the judge’s sentencing comments and the problems they present:

  • The judge invoked his recollections from his college days of Robinson’s neighborhood, noting that many years ago it was a safe place and now it was not because of the drug trade. “These references are troubling because they could be ‘understood as a personal grudge that the judge bore against [Robinson] for dealing drugs in his old neighborhood.’” (Slip op. at 4 (quoted source omitted)). Further, the remarks appear to attribute “issues of broad local [and] national … scope”—changing crime rates in cities—to Robinson’s crime, when these issues at best “only tangentially relate to his underlying conduct.” (Slip op. at 4 (quoted source omitted)).
  • The judge suggested that Robinson’s crime was related somehow to events elsewhere in the country by discussing its belief that “Milwaukee today is similar to Milwaukee in 1967, and drew questionable—and irrelevant—parallels between Milwaukee’s 1967 riots and recent protests in Baltimore over police brutality. He noted in particular some protests in Milwaukee over the Vietnam War in 1967 (12 years before Robinson was born)—protests that got in the way of [the judge’s] deployment to a combat zone. He wondered what would happen if something similar were to take place today, and he bemoaned the general lack of discipline, responsibility, and self-direction.” (Slip op. at 4). Robinson was not charged with or convicted of any crime involving inciting a riot, and events in Milwaukee before he was born, or recent protests in other cities, are not relevant to Robinson’s sentence. (Slip op. at 4-5).
  • The judge used “colorful” language to “dispense with arguments that [it] did not appreciate.” In response to Robinson’s statement that his family supports him, the judge said, “I don’t care how nice you are. How much your family loves you. I mean, my family loves me, too.” And in response to Robinson’s statement that he and his fiancée intended to move to Alabama in order to leave behind negative influences in Wisconsin and Illinois, the court noted that Robinson had five children by four different mothers, and questioned whether he was really prepared to support all five. “Robinson’s childcare arrangements might be relevant to his sentence for some purposes. The fact that he has children with multiple mothers is not, however, ‘the real problem’ (in the judge’s words) that his sentence is meant to address.” (Slip op. at 5).
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