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United States v. Smith

United States Court of Appeals, Seventh Circuit

June 19, 2017

United States of America, Plaintiff-Appellant,
v.
Terry Joe Smith, Defendant-Appellee.

          Argued April 12, 2017

         Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:14-cr-00006-WTL-CMM-1 - William T. Lawrence, Judge.

          Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

          ROVNER, Circuit Judge.

         A jury convicted Terry Joe Smith, a police officer, of violating 18 U.S.C. § 242, by subjecting two men to the intentional use of unreasonable and excessive force, and violating their civil right to be free of such abuse. The district court sentenced Smith to fourteen months' imprisonment, less than half the low end of the applicable guidelines range. In the first appeal of the case, we affirmed Smith's conviction but vacated the sentence and remanded for full resentencing, concluding that the court had failed to justify the below-guidelines sentence. United States v. Smith, 811 F.3d 907 (7th Cir. 2016). On remand, the court again sentenced Smith to fourteen months' imprisonment and once more failed to adequately explain or justify the below-guidelines sentence. We again vacate and remand for a complete re-sentencing.

         I.

         Smith was a police officer employed by the Putnam County Sheriff's Department. In two separate incidents, Smith violently assaulted arrestees who were already under control and not actively resisting arrest. At trial, Smith's fellow police officers testified against him, describing the unwarranted attacks. In the first incident, Smith punched the arrestee in the face with a closed fist, causing bleeding and swelling on his face. Two officers testified that the blow made the sound of a tomato hitting a concrete wall. At the time, the arrestee was fully under the control of four other officers, and the arrestee posed no danger to Smith. A fellow officer testified that he had been trained to refrain from striking anyone in the head with a closed fist unless he was in a "deadly force" situation because such a blow could be lethal. After that incident, Smith bragged about his behavior to other officers and mocked those who objected to his unjustified attack. The arrestee had to be removed from the scene in an ambulance.

         Several months later, in the second attack, Smith and other officers arrested an intoxicated man accused of battering a woman during a domestic dispute. Smith led the handcuffed arrestee to a patrol car. On reaching the car, Smith raised the man into the air, threw him face-first onto the ground and drove his knee into the man's back with such force that the man defecated on himself.[1] The man suffered injuries to his back and ribs. Smith later bragged that this was not the first time he had made someone defecate on himself. Again, Smith's fellow officers testified that the arrestee was not actively resisting in any manner and that the use of force was unjustified and excessive.

         Smith's guidelines range was thirty-three to forty-one months' imprisonment. Smith was in Criminal History Category I, based on one prior conviction for misdemeanor battery of a three-year-old child and the child's mother, who was then Smith's wife. The trial judge began the first sentencing hearing by considering the nature and circumstances of the offenses of conviction, noting only that he would rely on his memory of the trial and paragraphs four through seven of the presentence investigation report. The court noted difficulties in Smith's childhood. His young, troubled parents were unable to care for him but all four grandparents stepped in to raise him. His sister was killed by a drunk driver, leading Smith to participate in "victim impact panels" with the non-profit organization Mothers Against Drunk Driving. The court credited his work history, describing Smith as "indeed a person who does not shy away from work." R. 93, at 30. Smith had also served as an elected public official and a volunteer coach in local leagues and schools. He had the support of his community and family, including his surviving grandparents, and his fourth wife. He had custody of his son and guardianship of the daughter of a friend who was incarcerated.

         On the other hand, Smith had not taken responsibility for his actions, had "unaddressed anger control issues, " and had engaged in other misconduct that had not resulted in criminal charges. R. 93, at 33. In particular, he had assaulted two juveniles at a facility where he was working as a correctional officer, and then lied to cover up his conduct. At a different facility, he had removed an inmate from the jail, supplied tobacco products to that inmate, and improperly recorded the conversations of other inmates. He had also engaged in "ghost employment."[2] The court remarked that, if Smith addressed his anger control issues, his risk of re-offending was "slight." R. 93, at 34. Noting that there was no excuse for punching or abusing persons who are handcuffed, the court compared the sentences of other officers who had been convicted of engaging in similar conduct. The district court then sentenced Smith to a fourteen-month term, less than half the bottom end of the guidelines range. In explaining the below-guidelines sentence, the court said only, "This sentence is a downward variance based upon the history and characteristics that Mr. Smith presents as well as the nature and circumstances of this offense." R. 93, at 38.

         Smith appealed his conviction, and the government cross-appealed his sentence. We affirmed the conviction but vacated and remanded for a complete re-sentencing. Smith, 811 F.3d at 909-10. We noted that, although a sentence that low need not be unreasonable, the farther a judge strays from the guidelines range, "the more important it is that he give cogent reasons for rejecting the thinking of the Sentencing Commission." 811 F.3d at 910. We took issue with the court's conclusion that Smith was unlikely to re-offend if he addressed his anger management issues. Nothing in the record described the anger management program that Smith was required to undergo as a condition of supervised release and there was reason to question the efficacy of such an undefined program in light of Smith's history of violence and bizarre conduct towards the victims of his offenses of conviction.

         As for the district court's efforts to compare Smith's offenses to those in other cases, we noted that in the majority of the cases, the conduct was either similar to or not as egregious as Smith's crimes and yet the sentences were much higher than the sentence meted out to Smith:

Apart from the judge's reference to anger management and comments on Smith's minor good works in the community, no reason for the light sentence he imposed can be found in the transcript of the sentencing hearing.

811 F.3d at 911. We therefore vacated and remanded for resentencing.

         Coincidentally Smith was released from prison on the day our opinion issued. By the time he came to the court for resentencing, there was only slightly more information for the court to consider in setting his sentence. A large part of the second sentencing transcript tracks the first, virtually word for word. Since the first sentencing, Smith had served his time in prison without conduct violations. He completed fourteen hours of educational programming and worked in prison in plumbing and as a compound orderly. After his release and before resentencing, he secured employment, first as a car salesman and then as finance manager at the same dealership. He had paid his fine in full as well as the special assessment imposed at the first sentencing. He was enrolled in an eight-week anger management class, and was living with his wife, son and ward. His probation officer reported that Smith told her that he "had time to think about the victims of his offenses, and he is taking ownership of his actions. He is preparing a letter to the Court addressing this topic." R. 127, at 5.

         Smith did make a statement at his second sentencing hearing but it is difficult to find mention of his victims or much of a sense of ownership of his actions in his remarks. We reproduce in full the letter he read aloud:

Your Honor, as you may know, it is very dangerous being an ex-police officer in prison; but yet, there are little to no secrets in prison. Most inmates know why you are there before they even ask you. I had guys that hated me, not for being me but for my ex-profession. I made it clear I was no longer a sheriff's deputy, and I ...

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