united states court of appeals for the ...for the seventh circuit united states of america,...

No. 15-1686

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,vs.

JOSHUA GILLESPIE,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Wisconsin

Case No. 14-cr-106,the Honorable William M. Conley Presiding

BRIEF AND REQUIRED SHORT APPENDIX OF DEFENDANT-APPELLANT JOSHUA GILLESPIE

Shelley M. FitePeter R. MoyersFEDERAL DEFENDER SERVICES

OF WISCONSIN, INC.22 E. Mifflin St., Suite 1000Madison, WI 53703Tel.: (608) 260-9900E-mail: [email protected]

Counsel for Defendant-Appellant,Joshua Gillespie

Case: 15-1686 Document: 13 Filed: 08/14/2015 Pages: 68

DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1 and Circuit Rule 26.1, counsel

informs the Court that Federal Defender Services of Wisconsin, Inc.,

represented Defendant-Appellant Joshua Gillespie, who is a natural

person, in the district court. On appeal, Federal Defender Services of

Wisconsin, Inc., continues to represent Mr. Gillespie in this Court.

Date: August 14, 2015 /s/ Shelley M. Fite Counsel for Defendant-Appellant, Joshua Gillespie

i


TABLE OF CONTENTSPage

DISCLOSURE STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . -4-

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

I. Legal background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

A. U.S.S.G. § 4B1.2. . . . . . . . . . . . . . . . . . . . . . . . . . -6-

B. United States v. Dismuke. . . . . . . . . . . . . . . . . . . -7-

C. Johnson v. United States. . . . . . . . . . . . . . . . . . . . -9-

II. Johnson compels the conclusion that sentencing courtsmay no longer rely on the Guidelines’ residual clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-

A. The residual clause found at § 4B1.2 is void forvagueness.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

B. Independent of the vagueness doctrine, a districtcourt may not rely on an arbitrary factor—like theresidual clause—at sentencing. . . . . . . . . . . . -16-

ii


III. Even if this Court finds that the Guidelines’ residualclause can survive Johnson in some form, as applied tosome offense, Wisconsin’s fleeing statute can no longer beconsidered a crime of violence. . . . . . . . . . . . . . . . . . -18-

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . -25-

CIRCUIT RULE 31(e)(1) CERTIFICATION. . . . . . . . . . . . . . . . . . . -26-

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-

CIRCUIT RULE 30(d) STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . -28-

INDEX TO SHORT APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-

iii


TABLE OF AUTHORITIESPage

CASES

Begay v. United States, 553 U.S. 137 (2008). . . . . . . . . . . . . . . . . . . . . . . . 7

Chapman v. United States, 500 U.S. 453 (1991). . . . . . . . . . . . . . . . . 16, 17

Descamps v. United States, 133 S. Ct. 2276 (2013) . . . . . . . . . . . . 7, 20, 22

Gall v. United States, 552 U.S. 38 (2007).. . . . . . . . . . . . . . . . . . . . . . 14, 17

Hawkins v. United States, 724 F.3d 915 (7th Cir. 2013). . . . . . . . . . . . . 15

James v. United States, 550 U.S. 192 (2007). . . . . . . . . . . . . . . . . . . . . 8, 10

Johnson v. United States, 135 S. Ct. 2551 (2015) . . . . . . . . . . . . . . 4 passim

Ladner v. United States, 358 U.S. 169 (1958). . . . . . . . . . . . . . . . . . . . . . 22

Peugh v. United States, 133 S. Ct. 2072 (2013). . . . . . . . . . . . . . . . 5, 13, 15

Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . 21

State v. Beamon, 830 N.W.2d 681 (Wis. 2013). . . . . . . . . . . . . . . . . . 20, 22

State v. Sterzinger, 649 N.W.2d 677 (Wis. Ct. App. 2002) . . . . . . . . . . 22

Sykes v. United States, 131 S. Ct. 2267 (2011). . . . . . . . . . . . . . . . 3 passim

Townsend v. Burke, 334 U.S. 736 (1948). . . . . . . . . . . . . . . . . . . . . . . 16, 17

United States ex rel. Welch v. Lane, 738 F.2d 863 (7th Cir. 1984) . . . . .16, 17

United States v. Brierton, 165 F.3d 1133 (7th Cir. 1999). . . . . . . . . . 12, 13

United States v. Darden, No. 14-5537 (6th Cir. July 6, 2015). . . . . . . . . 12

iv


United States v. Demaree, 459 F.3d 791 (7th Cir. 2006).. . . . . . . . . . . . . 13

United States v. Dismuke, 593 F.3d 582 (7th Cir. 2010). . . . . . . . 3 passim

United States v. Harbin, Nos. 14-3956/3964 (6th Cir. July 20, 2015). .. 1.2

United States v. Idowu, 520 F.3d 790 (7th Cir. 2008).. . . . . . . . . . . . . . . 12

United States v. Jenkins, 417 F. Appx. 548 (7th Cir. 2011). . . . . . . . . . . . 7

United States v. Royal, 731 F.3d 333 (4th Cir. 2013) .. . . . . . . . . . . . . . . 21

United States v. Spells, 537 F.3d 743 (7th Cir. 2008) . . . . . . . . . . . . . . . . 7

United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012).. . . . . . . 12, 13, 15

United States v. Woods, 576 F.3d 400 (7th Cir. 2009). . . . . . . . . . . . . . 6, 7

STATUTES AND RULES

18 U.S.C. § 3553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12, 17, 18

18 U.S.C. § 924(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

U.S.S.G. Manual vol. 3, amend. 268. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

U.S.S.G. § 2K2.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

U.S.S.G. § 4B1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 18

U.S.S.G. § 4B1.2 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 passim

Wis. Stat. § 340.01(22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Wis. Stat. § 340.01(35). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Wis. Stat. § 340.01(74). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

v


Wis. Stat. § 346.01(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Wis. Stat. § 346.04(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 passim

Wis. Stat. § 346.17(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21

Wis. Stat. § 973.01(2)(b)(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21

OTHER AUTHORITIES

Wis. J.I.–Criminal 2630 n.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

vi


JURISDICTIONAL STATEMENT

This is a direct appeal from the judgment of conviction in a

criminal case. The district court had jurisdiction under 18 U.S.C. § 3231.

This Court has jurisdiction on appeal under 28 U.S.C. § 1291 and

18 U.S.C. § 3742. The United States District Court for the Western

District of Wisconsin, the Honorable William M. Conley presiding,

sentenced Mr. Gillespie on March 24, 2015, and entered a judgment of

conviction that same day. (App. 1). Mr. Gillespie filed a timely notice

of appeal on March 30, 2015. (R.30).1

1 Record citations in this brief refer to the district court docketnumber. Where only certain pages are relevant, record citations include therelevant page numbers after a colon, so that (R.30:1-2) would refer to docketentry number 30, pages 1-2. Citations to documents in the appendix are made

to the corresponding appendix page(s).

-1-


STATEMENT OF ISSUES

1. In Johnson v. United States, the Supreme Court struck

down the Armed Career Criminal Act’s “residual clause” as

unconstitutionally vague. The Sentencing Guidelines use the same

residual clause in defining “crime of violence,” which elevates certain

sentencing ranges. Is the Guidelines’ residual clause also void for

vagueness?

2. Johnson overruled the line of cases that established that

vehicular fleeing was a crime of violence, and it repudiated the

“ordinary case” test upon which they were based. Wisconsin’s fleeing

offense does not require dangerous driving and it extends to non-

motorized vehicles like bicycles. If the Guidelines’ residual clause still

has any validity post-Johnson, must this Court nevertheless find that

Wisconsin’s fleeing offense isn’t a crime of violence?

-2-


STATEMENT OF THE CASE

Joshua Gillespie was convicted of being a felon in possession of

a firearm. (App. 1.) At sentencing, his Guidelines offense level was

elevated based on a finding that he’d previously committed a “crime

of violence”: fleeing an officer contrary to Wis. Stat. § 346.04(3). (App.

10.) Gillespie objected that § 346.04(3) isn’t a crime of violence. He

acknowledged that this Court found, in United States v. Dismuke, that

the crime was a “violent felony” under the Armed Career Criminal

Act’s (ACCA) residual clause, which effectively established that it was

also a crime of violence under U.S.S.G. § 4B1.2’s identical residual

clause. (R.18:1-3 (citing Dismuke, 593 F.3d 582 (7th Cir. 2010).) But

Gillespie argued that Dismuke had been undermined by subsequent

cases and could no longer be considered good law. (R.18:3-6.)

The sentencing court rejected Gillespie’s argument, citing

Dismuke and also Sykes v. United States, 131 S. Ct. 2267 (2011), in which

the Supreme Court found that Indiana’s fleeing statute was a violent

felony (App. 10-12.) Thus, the court found that Gillespie’s Guidelines

range was 92 to 115 months. (App. 12.) And it sentenced him to 84

months in prison. (App. 24-26.)

-3-


Gillespie filed a timely notice of appeal, after which this Court

stayed the case pending a decision in a United States Supreme Court

case: Johnson v. United States. On June 26, 2015, the Supreme Court

issued an opinion in Johnson, striking down ACCA’s residual clause as

unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551 (2015).

SUMMARY OF THE ARGUMENT

The federal courts have always treated the residual clause found

in ACCA and in § 4B1.2 the same. In Dismuke, this Court held that

Wisconsin’s fleeing offense was a violent felony under ACCA, which

meant that it was also a crime of violence under § 4B1.2. In the court

below, Gillespie argued that the legal landscape had changed since

Dismuke: the Supreme Court in Descamps v. United States undermined

Dismuke’s legal analysis and a Wisconsin Supreme Court decision

undermined Dismuke’s interpretation of state law. Now the landscape

has changed again, and more profoundly—Johnson declared ACCA’s

residual clause void and, incidentally, overruled Dismuke.

In the wake of Johnson, Gillespie’s sentence cannot stand. Johnson

held that the residual clause is so vague that judicial efforts to make

sense of it amounted to “guesswork”—resulting in “unpredictability

and arbitrariness.” That same clause can’t be used to calculate

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Guidelines ranges that serve as the foundation of the federal sentencing

process. Although this Court has previously found that the void-for-

vagueness doctrine doesn’t apply to the Guidelines, that finding has

since been undermined by Johnson and by another recent Supreme

Court decision: Peugh v. United States. And even independent of the

void-for-vagueness doctrine, the Due Process Clause and 18 U.S.C.

§ 3553 protect against an arbitrary sentencing process.

Moreover, even if this Court were to find that Johnson doesn’t

scotch § 4B1.2’s residual clause, Johnson still compels the conclusion that

Wis. Stat. § 346.04(3) isn’t a crime of violence. Johnson repudiated the

ordinary-case test underlying Dismuke. When the analysis shifts from

an “ordinary” fleeing case to the elements of the offense, it is apparent

that § 346.04(3) is too broad to be a crime of violence. It doesn’t require

dangerous driving and it applies both to cars and to non-motorized

vehicles that present none of the risks of motor-vehicle flight. So

whether this Court effectively strikes down the residual clause found

at § 4B1.2 or reinterprets it in light of Johnson, at least one thing is clear:

§ 346.04(3) can no longer be considered a crime of violence.

-5-


ARGUMENT

I. Legal background

A. U.S.S.G. § 4B1.2

When calculating the Sentencing Guidelines, among the

weightiest determinations is whether the defendant committed a prior

“crime of violence.” This determination impacts the base offense level

for certain offenses, see, e.g., U.S.S.G. § 2K2.1, and can have an outsized

impact on the defendant’s criminal history category, see U.S.S.G.

§ 4B1.1. Review of this determination is de novo. United States v. Woods,

576 F.3d 400, 408 (7th Cir. 2009).

The Guidelines define “crime of violence” as any offense

punishable by more than one year of imprisonment that:

(1) has as an element the use, attempted use, orthreatened use of physical force against the personof another, or

(2) is burglary of a dwelling, arson, or extortion,involves use of explosives, or otherwise involvesconduct that presents a serious potential risk ofphysical injury to another.

U.S.S.G. § 4B1.2. This language was lifted from ACCA’s definition of

“violent felony,” U.S.S.G. Manual vol. 3, amend. 268, and the two

provisions—ACCA and § 4B1.2—are identical for present purposes.

-6-


Importantly, they share the same residual clause: “or otherwise

involves conduct that presents a serious potential risk of physical injury

to another.” Compare § 4B1.2(a)(2) with § 924(e)(2)(B)(ii). And this Court

has long treated cases interpreting the two provisions as

“interchangeable.” United States v. Spells, 537 F.3d 743, 749 n.1 (7th Cir.

2008) (citation omitted). Whether an offense is a crime of violence is

determined categorically—looking at the elements of the offense, not

the defendant’s conduct. Descamps v. United States, 133 S. Ct. 2276, 2284-

85 (2013); United States v. Woods, 576 F.3d 400, 405-07 (7th Cir. 2009).

B. United States v. Dismuke

This Court in Dismuke previously held that Wisconsin’s fleeing

offense was a “violent felony” under ACCA’s residual clause. Dismuke,

593 F.3d at 596. In other words, it found that the offense “presents a

serious potential risk of physical injury to another” that is both “similar

in degree” to ACCA’s enumerated crimes (burglary, arson, extortion,

use of explosives) and involves similarly “‘purposeful, violent, and

aggressive’ conduct.’” Id. (quoting Begay v. United States, 553 U.S. 137,

144 (2008)). Because this Court interprets “violent felony” and “crime

of violence” interchangeably, Dismuke established that Wis. Stat.

§ 346.04(3) was also a crime of violence under § 4B1.2. See United States

-7-


v. Jenkins, 417 F. Appx. 548, 549 (7th Cir. 2011) (Dismuke foreclosed

claim that § 346.04(3) is not a crime of violence).

Dismuke relied on the “ordinary case” test, which looks at “the

generic crime as ordinarily committed”—not the defendant’s conduct

or the least serious violation of the statute. Dismuke, 593 F.3d at 594

(citing James v. United States, 550 U.S. 192 (2007)). The Court found that

“taking flight in a vehicle calls the officer to give chase, and aside from

any accompanying risk to pedestrians and other motorists, such flight

dares the officer to needlessly endanger himself in pursuit.” Id. at 595

(quotation marks omitted). And the offense “will typically lead to a

confrontation with the officer being disobeyed,” which could lead to

injury. Id. In support of these propositions, the Court cited to other

federal circuit cases addressing other fleeing statutes. Id.

In Sykes, the Supreme Court seemed to bolster Dismuke’s

holding, by finding that Indiana’s fleeing-by-vehicle offense was a

violent felony. Sykes similarly focused on the “typical” case and

explained: “When a perpetrator defies a law enforcement command by

fleeing in a car, the determination to elude capture makes a lack of

concern for the safety of property and persons of pedestrians and other

drivers an inherent part of the offense.” 131 S. Ct. at 2273. Sykes, like

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Dismuke, said that a flee-er “creates the possibility that police will . . .

exceed or almost match his speed or use force” to bring him into

custody, which “has violent—even lethal—potential for others.” Id.

Several dissenters sharply criticized the Court’s reliance on the

ordinary-case test and Justice Scalia further argued, not for the first

time, that the residual clause was unconstitutionally vague. Id. at 2284-

88 (Scalia, J., dissenting); see also id. at 2289 (Kagan, J., dissenting).

C. Johnson v. United States

Justice Scalia’s dissent is now law—the Supreme Court in

Johnson threw out a long line of residual-clause cases and declared

ACCA’s residual clause void for vagueness. 135 S. Ct. at 2558-59. The

Johnson court found that “[t]wo features of the residual clause conspire

to make it unconstitutionally vague”: (1) “uncertainty about how to

estimate the risk posed by a crime” and (2) “uncertainty about how

much risk it takes to qualify as a violent felony.” Id. at 2557-58. In

addressing both features, the Court focused on the problematic nature

of the ordinary-case test.

As for estimating risk, the Court asked: “How does one go about

deciding what kind of conduct the ‘ordinary case’ of a crime involves?

A statistical analysis of the state reporter? A survey? Expert evidence?

-9-


Google? Gut instinct?” Johnson, 135 S. Ct. at 2557 (internal quotation

omitted). In James, the opinion that first articulated the ordinary-case

test, the Court figured that the “ordinary” attempted burglary would

involve a weapon and may lead to a violent encounter with a

homeowner. Johnson, 135 S. Ct. at 2558 (discussing James, 550 U.S. at

211). But Johnson noted that there was no reliable method for choosing

between that scenario and the James dissent’s proposed alternative: a

burglar who, upon seeing a homeowner, simply runs away. Id.

The Johnson Court then turned to the second uncertainty: the

quantum of risk that’s sufficient to qualify under the clause. 135 S. Ct.

at 2558. It noted that “[i]t is one thing to apply an imprecise ‘serious

potential risk’ standard to real-world facts; it is quite another to apply

it to a judge-imagined abstraction.” Id. Even worse: the residual clause

required courts to compare a hypothetical ordinary violation of a state

statute to a hypothetical ordinary violation of a statute prohibiting

burglary, arson, extortion, or use of explosives. Id. The Court concluded

that “[b]y combining indeterminacy about how to measure the risk

posed by a crime with indeterminacy about how much risk it takes for

the crime to qualify as a violent felony, the residual clause produces

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more unpredictability and arbitrariness than the Due Process Clause

tolerates.” Id.

Not only did Johnson overrule Sykes and Dismuke, it also

repudiated the reasoning of those cases. It criticized Sykes’

“commonsense conclusion” that fleeing is a violent felony. Johnson, 135

S. Ct. at 2559. The Court noted that Indiana’s fleeing statute, examined

in Sykes, “covered everything from provoking a high-speed car chase

to merely failing to stop immediately after seeing a police officer’s

signal” and it asked: “How does common sense help a federal court

discern where the ‘ordinary case’ of vehicular flight in Indiana lies

along this spectrum?” Id. Ultimately, the Court concluded that any

attempt to resolve such a question, “at best,” amounted to

“guesswork.” Id.

II. Johnson compels the conclusion that sentencing courtsmay no longer rely on the Guidelines’ residual clause.

Johnson addressed ACCA, not the Sentencing Guidelines, but the

case isn’t irrelevant here—it’s decisive. The two provisions share the

same residual clause, and Johnson’s holding that the clause is

unconstitutionally vague in the ACCA context dooms it in this one—

under multiple legal doctrines. Johnson compels the conclusion that

-11-


§ 4B1.2’s residual clause is void for vagueness and, moreover, Johnson’s

finding that the clause is incapable of principled application indicates

that a sentencing court’s reliance on it contravenes both the due process

right to a rational sentencing process and 18 U.S.C. § 3553(a). Either

way, district courts can’t go on applying § 4B1.2(a)(2) as before, and

sentences based on that section’s vague, unprincipled residual clause

cannot stand—at least not those, like Gillespie’s, still on direct appeal.

A. The residual clause found at § 4B1.2 is void forvagueness.

Section 4B1.2’s residual clause is identical to the one struck down

in Johnson—indeed, it was derived from it. So as long as the vagueness

doctrine applies to the Guidelines, Johnson establishes that § 4B1.2’s

residual clause is void for vagueness. The Sixth Circuit has already

reversed and remanded post-Johnson GVR cases dealing with the

Guidelines’ residual clause on this ground. United States v. Harbin, Nos.

14-3956/3964 (6th Cir. July 20, 2015); United States v. Darden, No. 14-

5537 (6th Cir. July 6, 2015). Gillespie acknowledges that this Court has

previously held that the vagueness doctrine doesn’t apply in the

Guidelines context. United States v. Tichenor, 683 F.3d 358, 363-64 (7th

Cir. 2012); United States v. Idowu, 520 F.3d 790, 795 (7th Cir. 2008); United

-12-


States v. Brierton, 165 F.3d 1133, 1138-39 (7th Cir. 1999). But that holding

is ripe for reconsideration in light of Johnson and also Peugh v. United

States, 133 S. Ct. 2072 (2013).

In finding that the vagueness doctrine didn’t apply to the

Guidelines, this Court reasoned that the Guidelines “do not establish

the illegality of any conduct”; they only “assist and limit the discretion

of the sentencing judge.” Tichenor, 683 F.3d at 364 (quoting Brierton, 165

F.3d at 1138-39). The Court also said that, post-Booker, the Guidelines

are “merely advisory” and therefore “defendants cannot rely on them

to communicate the sentence that the district court will impose.” Id. at

365. But Johnson established that the void-for-vagueness doctrine

doesn’t just apply to statutes that establish the “illegality of []

conduct”—it also applies to sentencing schemes. 135 S. Ct. at 2557-58.

And Peugh held that the Ex Post Facto Clause, which—like the

vagueness doctrine—is concerned with notice and is applicable to

“laws,” applies with equal force to the advisory Guidelines. 133 S. Ct.

at 2088.

It is noteworthy that Tichenor’s reasoning sounds remarkably

similar to that of United States v. Demaree, 459 F.3d 791, 793 (7th Cir.

2006), in which this Court held that the Guidelines did not implicate ex

-13-


post facto concerns—a holding overruled by Peugh. In Demaree, this

Court found that the Ex Post Facto Clause was intended to protect

people from punishment for conduct that was legal when committed

and from punishment that is more severe than would have been

possible when an offense was committed, “not to enable criminals to

calculate with precision the punishments that might be imposed on

them.” 459 F.3d at 793; see also Tichener, 683 F.3d at 364-65 (explaining

that the Guidelines are intended only to aid judges, not to provide

defendants with notice). The Demaree court also rejected the

defendant’s claim that federal judges treat the Guidelines like statutes,

noting that, post-Booker, a sentencing judge’s “freedom to impose a

reasonable sentence outside the [Guidelines] range is unfettered.” 459

F.3d at 795; see also Tichener, 683 F.3d at 365 (“The sentencing judge’s

authority to exercise discretion distinguishes the Guidelines from

criminal statutes in a significant and undeniable manner.”)

But Peugh overruled Demaree, and it repudiated this Court’s

reasoning. It recognized that the Sentencing Guidelines play a unique

role as the “starting point and the initial benchmark” for the sentencing

process. 133 S. Ct. at 2080 (quoting Gall v. United States, 552 U.S. 38, 49

(2007)). Even if a sentencing court deviates from the Guidelines, they

-14-


nevertheless serve as the “framework for” and the “lodestone of”

sentencing. Id. at 2083, 2084. Therefore the Supreme Court rejected the

government’s argument that advisory Guidelines lack “adequate legal

force to constitute an ex post facto violation.” Id. at 2087. And it held

that although the Guidelines are not statutes, their role in the

sentencing process subjected them to the Constitution’s prohibition

against ex post facto “laws.” Id. at 2088.

In light of Johnson and Peugh, this Court should overrule

Tichenor. Johnson put to rest any doubt that the void-for-vagueness

doctrine applies to a sentencing scheme and Peugh found that the

Guidelines’ quasi-statutory status subjects them to constitutional

scrutiny centered on a defendant’s right to notice. This Court has said

that, under Peugh, the advisory nature of the Guidelines “does not

excuse constitutional violations arising from the judge’s miscalculating

the applicable guideline.” Hawkins v. United States, 724 F.3d 915, 917

(7th Cir. 2013). That’s what we’re dealing with here. And having

established that the Guidelines are amenable to a vagueness challenge,

Johnson makes plain that § 4B1.2’s residual clause, lifted directly from

ACCA’s, is unconstitutionally vague. 135 S. Ct. at 2557-60.

-15-


B. Independent of the vagueness doctrine, a districtcourt may not rely on an arbitrary factor—likethe residual clause—at sentencing.

Even if this court were to find the vagueness doctrine

inapplicable here, that wouldn’t mean that sentencing courts could

keep relying on Guidelines calculations based on “guesswork.” Johnson,

135 S. Ct. at 2560. Fundamental to our system of criminal justice is the

right to a “fair sentencing process—one in which the court goes

through a rational procedure of selecting a sentence based on relevant

considerations and accurate information.” United States ex rel. Welch v.

Lane, 738 F.2d 863, 865 (7th Cir. 1984). This is a matter of constitutional

import. While the Constitution is not usually concerned with the length

of sentence, the Due Process Clause protects against “the careless or

designed pronouncement of sentence” on a “materially false”

foundation. Townsend v. Burke, 334 U.S. 736, 741 (1948). And it prohibits

the imposition of a penalty “based on an arbitrary distinction.”

Chapman v. United States, 500 U.S. 453, 465 (1991).

Johnson’s rationale reveals that § 4B1.2’s residual clause amounts

to an “arbitrary distinction.” Chapman, 500 U.S. at 465. Specifically, the

Court said that the clause is so “vague” and “shapeless” that it “invites

arbitrary enforcement by judges.” Johnson, 135 S. Ct. at 2557, 2560.

-16-


Moreover, the Court’s experience left it with “no doubt about the

unavoidable uncertainty and arbitrariness of adjudication under

residual clause.” Id. at 2562. Thus Johnson indicates that a sentencing

court’s reliance on the arbitrary distinction found at § 4B1.2(a)(2)

amounts to a due process violation even independent of the void-for-

vagueness doctrine. See Chapman, 500 U.S. at 465; Townsend, 334 U.S. at

741; Welch, 738 F.2d at 864-65.

And aside from constitutional considerations, the federal

statutes mandate a reasonable sentencing process. 18 U.S.C. § 3553; see

also Gall v. United States, 552 U.S. 38, 51 (2007) (reasonableness review).

It isn’t reasonable for a district court to base a sentence on “a black hole

of confusion and uncertainty that frustrates any effort to impart some

sense of order and direction.” Johnson, 135 S. Ct. at 2562 (internal

quotation omitted). The residual clause irrationally distorts a

sentencing court’s understanding of the defendant and his history and

it exacerbates unwarranted sentence disparities based on an arbitrary

system of classifying statutes. See id.; see also § 3553(a) (requiring

consideration of the defendant and his history, as well as the need to

avoid unwarranted sentencing disparities).

-17-


It is important to remember that the designation of an offense as

a crime of violence under § 4B1.2 has an outsized impact on sentencing.

It elevates the offense level for defendants like Gillespie and, in other

cases, results in a “career offender” designation that all but guarantees

a lengthy prison sentence. See U.S.S.G. § 4B1.1. For Gillespie, the

determination that he committed a crime of violence elevated his

Guidelines range by several years—based on a single fleeing offense

with an 18-month maximum sentence. See Wis. Stat. §§ 346.17(3)(a) &

973.01(2)(b)(9). Now that Johnson has declared the residual clause

irredeemably vague, it’s clear that a sentencing court’s reliance on the

same clause, found at § 4B1.2, violates both the Due Process Clause and

§ 3553. And because the district court relied on the residual clause here,

Gillespie is entitled to resentencing.

III. Even if this Court finds that the Guidelines’ residualclause can survive Johnson in some form, as applied tosome offense, Wisconsin’s fleeing statute can no longerbe considered a crime of violence.

In the event that this Court doesn’t essentially strike down

§ 4B1.2’s residual clause, that clause still can’t be used to elevate the

sentencing range here. The district court found that fleeing in violation

of Wis. Stat. § 346.04(3) is a crime of violence under two ACCA

-18-


residual-clause fleeing cases: Dismuke and Sykes. But Johnson overruled

both of those cases. Indeed, it didn’t just overrule them—it also

undermined their analytical framework and it criticized the conclusion

that fleeing was a violent felony. Johnson, 135 S. Ct. at 2559.

So if § 4B1.2’s residual clause somehow survives Johnson, there’s

nothing that might be seen as mandatory or persuasive authority for

the proposition that § 346.04(3) is a crime of violence. What’s more, the

legal standard previously used to determine whether something is a

crime of violence—the ordinary-case test—is no longer viable. See

Johnson, 135 S. Ct. at 2557-59 (renouncing the ordinary-case test); see also

Dismuke, 593 F.3d at 594 (using that test to determine that a “generic”

fleeing offense amounts to a high-speed car chase ending in a

confrontation). So if this Court soldiers on with the Guidelines’ residual

clause, it’s left with the elements of § 346.04(3) and a strong indication

from the Supreme Court that fleeing never should have been

categorized as a violent crime.

Starting with the elements, Wis. Stat. § 346.04(3) provides:

No operator of a vehicle, after having received a visual oraudible signal from a traffic officer, or marked policevehicle, shall knowingly flee or attempt to elude anytraffic officer by willful or wanton disregard of suchsignal so as to interfere with or endanger the operation of

-19-


the police vehicle, or the traffic officer or other vehicles orpedestrians, nor shall the operator increase the speed ofthe operator’s vehicle or extinguish the lights of thevehicle in an attempt to elude or flee.

This Court, in Dismuke, found that the statute was divisible, in that it

defined two distinct offenses: (1) disregarding an officer’s signal “so as

to interfere with or endanger the operation of the police vehicle” or

others; and (2) “increasing the speed of the operator’s vehicle or

extinguishing the lights of the vehicle” in an attempt to elude the

officer. 593 F.3d at 592. This is relevant to the categorical analysis

because if it’s divisible, the district court may review certain documents

for the limited purpose of identifying which offense constituted the

crime of conviction. Descamps, 133 S. Ct. at 2282.

Incidentally, the Wisconsin Supreme Court recently interpreted

§ 346.04(3) in a way that’s incompatible with Dismuke’s divisibility

finding. The state supreme court held that § 346.04(3) defines a single

offense with two elements: (1) the officer’s signal and (2) knowing flight

or attempted eluding. State v. Beamon, 830 N.W.2d 681, 691 (Wis. 2013).

It explained that the enumerated actions (interfering with others,

increasing speed, and extinguishing lights) are but “three methods of

satisfying the second” element. Id. Thus Beamon instructs that

-20-


§ 346.04(3) is not divisible. See Rendon v. Holder, 764 F.3d 1077, 1087 (9th

Cir. 2014) (under Descamps, whether a statute is divisible is based on

“the elements of the crime, not the mode or means of proving an

element.”); see also United States v. Royal, 731 F.3d 333, 341 (4th Cir.

2013) (holding that an offense with “alternative means of satisfying a

single element” was not divisible).

Moreover, the Court (and the parties) in Dismuke also

overlooked a feature of § 346.04(3) that is critical to any risk analysis:

it applies to an operator of any “vehicle”—not just a “motor vehicle.”

§ 346.04(3). “Vehicle” includes “every device” that can transport people

or property on a public road, including the shoulder of the road,

whether or not the device is self-propelled—including a bicycle or a

scooter. Wis. Stat. §§ 340.01(74)&(22) & 346.01(1); compare with

§ 340.01(35). This is clear from the language of the statute itself, but the

jury instruction also specifically notes that § 346.04(3) “applies to all

vehicles and isn’t restricted to ‘motor’ vehicles.“ See Wis. J.I.–Criminal

2630 n.1. The offense is a class I felony, Wisconsin’s lowest-level felony,

and it’s punishable only by up to 18 months in prison. Wis. Stat.

§§ 346.17(3)(a) & 973.01(2)(b).

-21-


So what we have here is a broad, indivisible statute that

criminalizes any flight from an officer regardless of whether or not

anyone is endangered. See Beamon, 830 N.W.2d at 691; State v.

Sterzinger, 649 N.W.2d 677, 684 (Wis. Ct. App. 2002) (defendant need

not endanger anyone). It criminalizes everything from a low-speed

evasion to a Hollywood-style car chase. And it’s even broader than

that—it criminalizes flight on a bike.

The Supreme Court in Descamps instructed that, under the

categorical analysis, when a statute is so broad that it (indivisibly)

encompasses both violent and nonviolent conduct, it can’t be labeled

a violent crime. 133 S. Ct. at 2283. This is consistent with the rule of

lenity, which provides that a court may “not interpret a federal criminal

statute so as to increase the penalty that it places on an individual when

such an interpretation can be based on no more than a guess as to what

Congress intended.” Ladner v. United States, 358 U.S. 169, 178 (1958).

And it compels the conclusion that § 4B1.2 doesn’t cover Wis. Stat.

§ 346.04(3)—a relatively minor state crime that can be committed by a

driver of a car, or a bike-rider, who marginally increases his speed in

an effort to evade a police officer.

-22-


Finally, Johnson itself indicates that fleeing—even motor-vehicle

fleeing—never should have been categorized as a violent felony. The

Johnson court discussed Sykes’ “commonsense conclusion” that fleeing

was a violent felony to illustrate the unprincipled nature of the

ordinary-case test. Johnson, 135 S. Ct. at 2559. It noted that the Indiana

fleeing statute examined in Sykes “covered everything from provoking

a high-speed car chase to merely failing to stop immediately after

seeing a police officer’s signal” and it asked: “How does common sense

help a federal court discern where the ‘ordinary case’ of vehicular flight

in Indiana lies along this spectrum?” Id.

Post-Johnson, this Court need not engage in this enterprise—the

ordinary-case test is no longer a viable analytical tool. Johnson, 135 S. Ct.

at 2558. If § 4B1.2’s residual clause has any continuing validity, it must

be applied with reference to the elements of the state statute at issue.

And because § 346.04(3) prohibits a broad swath of conduct, including

conduct that doesn’t create a “serious potential risk of physical injury

to another,” no matter how one defines that quantum of risk, it isn’t a

crime of violence.

-23-


CONCLUSION

In Johnson, the Supreme Court declared that the residual clause

found at U.S.S.G. § 4B1.2 is “a black hole of confusion and uncertainty

that frustrates any effort to impart some sense of order and direction”

and a “judicial morass that defies systemic solution.” 135 S. Ct. at 2562.

In the face of such a declaration, this Court should follow Johnson’s lead

and hold, simply, that district courts can’t rely on the residual clause at

sentencing. But even if this Court decides, instead, to try to make sense

of the morass, Wisconsin’s fleeing offense isn’t a crime of violence.

Either way, Joshua Gillespie is entitled to resentencing.

Dated at Madison, Wisconsin, this 14th day of August, 2015.

Respectfully submitted,

/s/ Shelley M. Fite Shelley M. FitePeter R. MoyersFEDERAL DEFENDER SERVICES

OF WISCONSIN, INC.22 East Mifflin Street, Suite 1000Madison, WI 53703Tel.: (608) 260-9900E-mail: [email protected]

Counsel for Defendant-Appellant,Joshua Gillespie

-24-


CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7), counsel for Defendant-

Appellant certifies that this brief complies with the type-volume

limitations of Fed. R. App. P. 32(a)(7)(B), because it contains no more

than 14,000 words. Specifically, all portions of the brief other than the

disclosure statement, table of contents, table of authorities, and

certificates of counsel contain 4,735 words.


-25-


CIRCUIT RULE 31(e)(1) CERTIFICATION

The undersigned hereby certifies that I have filed electronically,

pursuant to Circuit Rule 31(e), versions of the brief and all of the

appendix items that are available in non-scanned PDF format.


-26-


CERTIFICATE OF SERVICE

The undersigned counsel for the defendant-appellant hereby

certifies that on August 14, 2015, two copies of this brief, as well as a

digital version of the brief via the Court’s CM/ECF system, were

delivered via first class mail to AUSA Rita Rumbelow, counsel for the

government in this action, and to Joshua Gillespie.


-27-


CIRCUIT RULE 30(d) STATEMENT

Pursuant to Circuit Rule 30(d) (7th Cir.), counsel for the

defendant-appellant states that she has bound all of the materials that

Circuit Rules 30(a) and (b) require in the short appendix to this brief.


-28-


INDEX TO SHORT APPENDIX

Page

Judgment in a Criminal Casesigned March 24, 2015. . . . . . . . . . . . . . . . . . . . . App. 1 - App. 7

Transcript of Sentencing Hearing held March 24, 2015. . . . . . . . . . . . . . . . . . . . . . App. 8 - App. 32

-29-


AO 245 B (Rev. 3/01)(N.H. Rev.) Judgment - Page 1

United States District CourtWestern District of Wisconsin

UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE(for offenses committed on or after November 1, 1987)

V. Case Number: 0758 3:14CR00106-001

Joshua Gillespie Defendant's Attorney: Peter Moyers

The defendant, Joshua Gillespie, pleaded guilty to count 1 of the indictment.

The defendant has been advised of his right to appeal.

ACCORDINGLY, the court has adjudicated defendant guilty of the following offense(s):

Title & Section Nature of Offense

Date Offense

Concluded

Count

Number(s)

18 U.S.C. § 922(g)(1) Felon in Possession of Firearm, a Class C Felony 10/08/2014 1

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

IT IS FURTHER ORDERED that the defendant shall notify the United States Attorney for this district within 30 days

of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments

imposed by this judgment are fully paid. If ordered to pay restitution, the defendant shall notify the court and United

States Attorney of any material change in the defendant’s economic circumstances.

Defendant's Date of Birth: May 19, 1990 March 24, 2015

Defendant's USM No.: 08868-090Date of Imposition of Judgment

Defendant's Residence Address: c/o Kim Wallace710 10th StreetBeloit, WI 53511

/s/ William Conley

Defendant's Mailing Address: Sauk County Jail1800 Lange CourtBaraboo, WI 53913

William M. ConleyDistrict Judge

March 24, 2015

Date Signed:

Case: 3:14-cr-00106-wmc Document #: 27 Filed: 03/25/15 Page 1 of 7

App. 1


DEFENDANT: Joshua Gillespie AO 245 B (Rev. 3/01)(N.H. Rev.) CASE NUMBER: 0758 3:14CR00106-001 Judgment - Page 2

IMPRISONMENT

As to count one of the indictment, it is adjudged that the defendant is committed to the custody of the Bureau of Prisons for

a term of 84 months. The defendant was already serving a term of extended supervision and probation in Rock County,

W isconsin, Circuit Court Case Nos. 2010CF2262 and 2012CF435, when he committed the instant offense. The State has

initiated revocation hearings. He also has a pending case in Rock County Circuit Court Case No. 2014CF2383. The Supreme

Court’s ruling in Setser v. United States, 132 S.Ct. 1463 (2012), provides the Court with discretion to order that this sentence

run consecutive to, or concurrent with, the imposition of any sentence with respect to defendant’s pending state cases. I stand

silent in these matters. The state courts can consider the sentence imposed in this case and make independent findings with

respect to concurrent or consecutive sentencing options if and when appropriate.

I recommend that the defendant receive vocational programming, mental health and drug treatment, including RDAP, and that

he be afforded prerelease placement in a residential reentry center with work release privileges.

The U.S. Probation Office is to notify local law enforcement agencies, and the state attorney general, of defendant's

release to the community.

RETURN

I have executed this judgment as follows:

Defendant delivered on to

at , with a certified copy of this judgment.

UNITED STATES MARSHAL

By

Deputy Marshal


App. 2



SUPERVISED RELEASE

A term of supervised release is not required by statute in this case. Based on the defendant’s conduct and personal

characteristics, however, including the danger he presents to the community because of his current and past involvement in

drug distribution and the possession of firearms, the term of imprisonment is to be followed by a three-year term of supervised

release.

Pursuant to the Sentencing Reform Act of 1984, the primary goals of supervised release are to assist a defendant's transition

into the community after a term of imprisonment and to provide rehabilitation. Supervision in this case will provide the

defendant with needed correctional programming, including rehabilitative programs, to assist with community reintegration;

afford adequate deterrence to further criminal conduct; and protect the public from further crimes perpetrated by the defendant.

Specifically, the standard conditions will allow the supervising probation officer to monitor and ensure the defendant is

maintaining legitimate employment, living within his means, refraining from drug use and criminal associations and committing

no new law violations. I adopt the standard conditions 2, 3 and 5 through 11 as outlined in the Appendix of the revised

presentence report with the suggested modified language proposed by the government.

Defendant shall report to the probation office in the district to which defendant is released within 72 hours of release from the

custody of the Bureau of Prisons.

Defendant shall not commit another federal, state, or local crime.

Defendant shall not illegally possess a controlled substance.

If defendant has been convicted of a felony, defendant shall not possess a firearm, destructive device, or other dangerous

weapon while on supervised release.

Defendant shall cooperate with the collection of DNA by the U.S. Justice Department and/or the U.S. Probation and Pretrial

Services Office as required by Public Law 108-405.

If this judgment imposes a fine or a restitution obligation, it shall be a condition of supervised release that defendant pay any

such fine or restitution that remains unpaid at the commencement of the term of supervised release in accordance with the

Schedule of Payments set forth in the Financial Penalties sheet of this judgment.

Defendant shall comply with the standard conditions that have been adopted by this court (set forth on the next page).

In light of the nature of the offense and the defendant’s personal history, I adopt the special conditions proposed in the

presentence report for the reasons set forth, noting that neither party has raised any objections to those proposals, except for

suggested modified language by the government to address recent Seventh Circuit decisions, all of which will be incorporated.

The search condition is warranted based on the nature of the offense of conviction and the defendant’s history of possessing

firearms, the defendant’s criminal history and the need to protect the public. As to the financial monitoring condition, it is noted

that the defendant’s relevant conduct involved illegally selling crack cocaine for profit. He also admitted to using past treatment

programs to learn how to become a better drug dealer. The defendant has not maintained stable employment and likely has

supported himself through the sale of controlled substances. He has a negative net worth, including accounts in collections.

The defendant will be required, per statute, to pay a $100 assessment, which has not been paid. Lastly, the defendant is

legally obligated to pay state and federal income tax, if he earns taxable income. The financial monitoring condition as

recommended is not overly burdensome and serves the statutory purposes of sentencing and rehabilitation.

The drug testing and treatment condition is imposed based on defendant’s self-reported and documented substance abuse

history, the nature of the offense of conviction, and to comply with the provisions of 18 U.S.C. § 3583(d).

If either the defendant or the supervising probation officer believes that any of the conditions imposed today are no longer

appropriate, either one may petition the Court for review when the defendant is released from confinement to begin his term

of supervised release.

As special conditions, defendant is to:

(1) Submit his person, property, house, residence, papers, vehicle, or office to a search conducted by a U.S. probation officer

at a reasonable time and in a reasonable manner, whenever the probation officer has reasonable suspicion of contraband

or of the violation of a condition of release; failure to submit to a search may be a ground for revocation; defendant shall

warn any other residents that the premises he is occupying may be subject to searches pursuant to this condition.


App. 3



(Recommended based on the offense of conviction which involved possession of a firearm, the defendant’s criminal

history, the need to protect the community, and the safety of the supervising U.S. probation officer assigned to the case.)

(2) Provide the supervising U.S. probation officer any and all requested financial information, including copies of state and

federal tax returns. (Recommended based on the defendant’s limited and sporadic employment history, negative net

worth, requirement to pay a $100 special assessment, and obligation to pay state and federal income tax, if he earns

taxable income.)

(3) Abstain from the use of alcohol and illegal drugs and from association with drug users and sellers and participate in

substance abuse treatment. The defendant shall attempt to seek funding to cover the costs of treatment. Participation

in treatment does not require payment by the defendant unless it is clear he can afford it. Defendant shall submit to drug

testing beginning within 15 days of his release and 60 drug tests annually thereafter. The probation office may utilize the

Administrative Office of the U.S. Courts’ phased collection process. (Recommended based on the details of the offense

of conviction, the defendant’s prior criminal records which reflect a history of involvement with drugs, and information

received regarding the defendant’s recent drug and alcohol use.)


App. 4



STANDARD CONDITIONS OF SUPERVISION1) Defendant shall not leave the judicial district without the permission of the court or probation officer;

2) Defendant shall report to the probation officer as directed by the court or probation officer and shall submit a

report within the first five days of each month;

3) Defendant shall answer all inquiries by the probation officer and follow the instructions of the probation officer;

4) Defendant shall support his or her dependents and meet other family responsibilities;

5) Defendant shall work conscientiously at suitable employment or pursue conscientiously a course of study or

vocational training that will equip him for suitable employment, unless excused by the probation officer;

6) Defendant shall notify the probation officer within seventy-two hours of any change in residence or employment;

7) Defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute or

administer any narcotic or other controlled substance, or any paraphernalia related to such substances except as

prescribed by a physician;

8) Defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or

administered;

9) Defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any

person convicted of a felony unless granted permission to do so by the probation officer;

10) Defendant shall permit the probation officer to visit the defendant at home or work at any reasonable time, and to

confiscate any contraband in plain view of the officer;

11) Defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law

enforcement officer;

12) Defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement

agency without the permission of the court;

13) As directed by the probation officer, defendant shall notify third parties of risks that may be occasioned by

defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make

such notifications and to confirm defendant's compliance with such notification requirement.

ACKNOW LEDGMENT OF CONDITIONS

I have read or have had read to me the conditions of supervision set forth in this judgment, and I fully understand them. I

have been provided a copy of them. I understand that upon finding a violation of probation or supervised release, the

Court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision.

Defendant Date

U.S. Probation Officer Date


App. 5



CRIMINAL MONETARY PENALTIES

Defendant shall pay the following total financial penalties in accordance with the schedule of payments set forth below.

Count Assessment Fine Restitution

1 $100.00 $0.00 $0.00

Total $100.00 $0.00 $0.00

It is adjudged that the defendant is to pay a $100 criminal assessment penalty to the Clerk of Court for the W estern District

of W isconsin immediately following sentencing.

The defendant does not have the means to pay a fine under § 5E1.2(c) without impairing his ability to support himself and

his children upon release from custody.


App. 6



SCHEDULE OF PAYMENTS

Payments shall be applied in the following order:

(1) assessment;

(2) restitution;

(3) fine principal;

(4) cost of prosecution;

(5) interest;

(6) penalties.

The total fine and other monetary penalties shall be due in full immediately unless otherwise stated elsewhere.

Unless the court has expressly ordered otherwise in the special instructions above, if the judgment imposes a period of

imprisonment, payment of monetary penalties shall be due during the period of imprisonment. All criminal monetary

penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program,

are made to the clerk of court, unless otherwise directed by the court, the probation officer, or the United States Attorney.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

In the event of a civil settlement between victim and defendant, defendant must provide evidence of such payments or

settlement to the Court, U.S. Probation office, and U.S. Attorney’s office so that defendant’s account can be credited.


App. 7


UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

UNITED STATES OF AMERICA,

Plaintiff,

-vs- Case No. 14-CR-106-WMC

JOSHUA GILLESPIE, Madison, Wisconsin March 24, 2015 Defendant. 1:00 p.m.

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

STENOGRAPHIC TRANSCRIPT OF SENTENCING HEARING HELD BEFORE CHIEF JUDGE WILLIAM M. CONLEY,

APPEARANCES:

For the Plaintiff: Office of the United States Attorney BY: RITA RUMBELOW Assistant United States Attorney 660 West Washington Avenue Madison, Wisconsin 53703 For the Defendant: Federal Defender Services of Wisconsin Madison Branch Office BY: PETER MOYERS 22 East Mifflin Street, Ste. 1000 Madison, Wisconsin 53703 Also appearing: Joshua Gillespie - defendant Jessica Harris - US Probation Officer

Lynette Swenson RMR, CRR, CBC U.S. District Court Federal Reporter

United States District Court 120 North Henry Street, Rm. 520 Madison, Wisconsin 53703

608-255-3821

App. 8


2

1 (Proceedings called to order.)

2 THE CLERK: 14-CR-106-WMC-1. The United States

3 of America v. Joshua Gillespie called for sentencing.

4 May we have the appearances, please.

5 MS. RUMBELOW: Rita Rumbelow for the United

6 States.

7 MR. MOYERS: Peter Moyers from Federal Defender

8 Services, and seated here to my right is Mr. Gillespie.

9 THE COURT: Very good. We're here for the

10 sentencing of Joshua Gillespie. My first obligation,

11 Mr. Gillespie, is to ensure that you've had an

12 opportunity to read and discuss the presentence report

13 and addendum to that report with your counsel.

14 THE DEFENDANT: Yes, Your Honor, I have.

15 THE COURT: Thank you. And then to confirm

16 that the government does indeed move for an additional

17 one-level reduction for acceptance of responsibility.

18 MS. RUMBELOW: That's correct, Your Honor.

19 THE COURT: With those preliminaries, I will

20 accept the plea agreement, finding that the offense of

21 conviction adequately reflects the defendant's criminal

22 conduct and the plea agreement does not undermine the

23 purposes of sentencing.

24 In determining the defendant's sentence today, I

25 will take into consideration the advisory sentencing

App. 9


3

1 guidelines, as well as the statutory purposes of

2 sentencing that are set forth at Section 3553(a) of

3 Title 18.

4 As for the guidelines, I do find that the Probation

5 Office has calculated the advisory guidelines correctly

6 using the current manual. The calculations take into

7 account all relevant conduct pursuant to Section 1B1.3.

8 Using the 2014 guidelines manual, it does not change and

9 the 20 -- I should say the guidelines manual used by the

10 Probation Office was 2014. The result or calculation

11 doesn't change using the 2014 manual.

12 I note that the defendant does object to the base

13 offense level of 20, maintaining that his prior

14 conviction for felony fleeing and eluding an officer

15 under Section 346.04(3) of the Wisconsin statutes is not

16 a crime of violence for purposes of Section 2K2.1(a)(4)

17 of the guidelines.

18 If not, the defendant properly points out that the

19 base offense level here would be 17 and would provide,

20 with his criminal history category of VI, for a

21 guideline range of 51 to 63 months. Unfortunately for

22 the defendant, I agree with the government that a

23 conviction for felony fleeing and eluding is a crime of

24 violence for purposes of the statute, Section

25 2K2.1(a)(4)(A) under the Seventh Circuit controlling

App. 10


4

1 opinion in United States v. Dismuke -- I might be

2 mispronouncing the case, but I'm confident is applies --

3 593 F.3d 582 (Seventh Circuit 2010). The Seventh

4 Circuit has held that the definitions of a crime of

5 violence and a violent felony as they pertain to

6 predicate offenses involving eluding and fleeing an

7 officer in a vehicle are interchangeable, which they did

8 in both the Spells case from 2008 and the Dunson case

9 from 2010.

10 Similarly the Supreme Court's explaining in U.S. v.

11 Sykes, 131 S.Ct. 2267 (2011), a vehicle flight from a

12 law enforcement officer ordinarily results in a

13 dangerous confrontation between the offender and the law

14 enforcement officer and others. Because the

15 preponderance of the evidence here reflects a deliberate

16 and conscious decision to create a substantial risk --

17 there is substantial risk of harm, there is no need to

18 apply a modified categorical approach in this case under

19 Descamps. Even if the Court were to apply that

20 analysis, the defendant's failure to adhere to the

21 officer's instruction in the act of fleeing endangered

22 officers and both those pieces of conduct endangered

23 officers, himself and others.

24 As a result, the offense level computation as

25 reflected in the presentence report remains unchanged in

App. 11


5

1 the Court's view. The guideline for a felon in

2 possession of a firearm in violation of Section

3 922(g)(1) of Title 18 is found at Section 2K2.1.

4 Defendant committed the instant offense after a felony

5 conviction for a crime of violence, specifically the

6 felony and fleeing that the Court has just addressed in

7 Rock County, Wisconsin, Circuit Court, Case Number

8 2010-CF-2262.

9 In addition to this base offense level of 20, two

10 levels apply under subsection 1(b)(4) because the

11 firearm was stolen. The defendant possessed a firearm

12 and ammunition in connection with another felony,

13 specifically possession with intent to distribute or

14 deliver cocaine, so four more levels are added under

15 subsection 1(b)(6)(B), which leaves the Court with an

16 adjusted offense level of 26.

17 Because the defendant qualifies for a three-level

18 downward adjustment under subsection 3E1.1, he has

19 demonstrated acceptance of responsibility and the

20 government has moved for an additional reduction. His

21 total offense level here is 23. His criminal history

22 guideline is VII -- I'm sorry -- is VI. The government

23 has an advisory guideline imprisonment range of --

24 government suggests, and the defendant has, an advisory

25 guideline imprisonment range of 92 to 115 months.

App. 12


6

1 That's an awful lot of, I'm almost inclined to say,

2 gobbledegook. The guidelines have -- they have their

3 problems, including problems that historically have

4 driven sentences, I think by consensus even of Congress,

5 too high. The adjustments here have been made and they

6 still suggest a substantial sentence. I think from the

7 defendant's submissions -- and I have tried to read

8 everything, I believe I have, including the presentence

9 report. I've reviewed the letter from the defendant, as

10 well as the many letters written on his behalf by family

11 members, and the sentencing memorandum of the defendant,

12 as well as objections to the presentence investigation

13 report.

14 At the end of the day, the defendant acknowledges

15 the seriousness of his criminal history and of his need

16 to change. I do note despite the severity of his

17 conduct, including now twice having possession of

18 firearms in connection with drug dealing, and I can't

19 minimize the danger of that, that the defendant does not

20 appear to have a violent history, and that's a factor

21 that the Court takes into account, as well as his age,

22 his apparent intelligence, and the possibility that he

23 can be much more than he has to date, although that

24 doesn't change the seriousness of the offense or the

25 severity of his past history. And so I'm trying to

App. 13


7

1 weigh all of that in arriving at an appropriate

2 sentence.

3 With that, I'll hear any additional comments that

4 the government wishes to make, as well as defense

5 counsel, and of course I'll hear from the defendant.

6 Ms. Rumbelow.

7 MS. RUMBELOW: Thank you, Your Honor. The

8 government thinks that the defendant does have a violent

9 history. The Court just ruled that his prior conviction

10 for fleeing and eluding is a crime of violence. And

11 then also in this case, we know the underlying facts are

12 that a deputy attempted to initiate a stop, and once

13 again the defendant fled. And then when the deputy

14 tried to subdue him, he resisted arrest and there was a

15 struggle.

16 THE COURT: And I want to be clear: I did find

17 that was endangering conduct and I think his possession

18 of firearms is a dangerous situation. What I was

19 referring to is in terms of the kind of batteries, the

20 only one I see in the record is at the age of 13 with

21 respect to a sibling and four others that resulted in

22 apparently serious injuries. But I don't see that

23 history subsequently, which at least suggests to me that

24 there's an ability by this defendant to restrain his

25 conduct, if not for his involvement with drugs and his

App. 14


8

1 own addiction, which I take is a hopeful sign. I don't

2 think it minimizes the dangerousness of his other

3 conduct.

4 MS. RUMBELOW: That's correct, Your Honor. And

5 also we know the defendant was in possession of crack

6 cocaine here while armed. And when he was arrested, he

7 told the law enforcement officers he loves the game.

8 He's addicted to the drug-dealing lifestyle. So the

9 combination of drugs and guns, you know, that's violent.

10 And he laughed and said, you know, he's going to keep

11 possessing firearms. He'd rather possess a firearm than

12 get shot in Beloit. So the defendant himself told us on

13 the day of his arrest that he's going to be a

14 recidivist.

15 Now I understand that in the letter he wrote to the

16 Court he said no, no, I'm not going to be a recidivist.

17 How can we trust that? He's a repeat offender. His

18 tattoos -- he's got a tattoo on his arm. Now, I know we

19 don't know at what age he got it, but no money like dope

20 money, and then a symbol of cash. Here we have a

21 defendant who has admitted he violates probation. His

22 adjustment to supervision is poor. He doesn't maintain

23 a job. We know he's a drug dealer. And then he tells

24 law enforcement officers on the scene hey, I'm going to

25 keep doing this. And his tattoos and his lifestyle to

App. 15


9

1 date support that.

2 So I think that this defendant absolutely will be a

3 recidivist. I don't hold any merit to the letter he

4 wrote to the Court. I know his family loves him. But

5 to give anything other than a guidelines sentence here,

6 in the government's view, the only thing that would

7 accomplish is that an armed drug dealer is going to be

8 back on the streets of Beloit earlier than he should be,

9 and I think that that presents a real danger to the

10 community. And so for that reason, the government does

11 request a guideline sentence.

12 THE COURT: Thank you, Counsel. I'll hear from

13 defense counsel.

14 MR. MOYERS: Yeah, the government is right.

15 There's some bad facts in here and Mr. Gillespie is

16 going to go to prison for a substantial amount of time

17 for that. His remarks to the arresting officers were

18 boastful and immature, and I think unfortunately

19 Mr. Gillespie is going to learn, not just a hard lesson

20 from this, but has learned a hard lesson because of some

21 of his recent family challenges.

22 Can anybody guarantee how he will do in the future?

23 No. But I don't think --

24 THE COURT: Apparently Ms. Rumbelow can.

25 MS. RUMBELOW: Look, I hold out hope for him.

App. 16


10

1 He is bright. He is affable. He's still just 24; he'll

2 be 25 in a couple months. This isn't somebody that

3 needs to have the book thrown at them for a long

4 sentence to just keep them on ice for a long, long time.

5 This is somebody who can change. I'm not going to give

6 up and say that he's absolutely going to reoffend. I

7 don't think he will.

8 And he's going to have a tough road to hoe. But we

9 at least know that, you know, when he does focus, he got

10 his forklift operator's license. He got his degree

11 after being basically locked up when he should have been

12 in high school. And look, we understand that that cuts

13 both ways; that his trouble as a minor adds some

14 perspective. But it also shows the Court something too

15 about what a troublemaker he was growing up.

16 I think it's also important to take into account

17 that the lasting effect of this sentence will also be

18 that if he gets in trouble again, he's caught with a gun

19 or if he's caught with distribution -- no, really any

20 amount of drugs, he'll be back in here and we'll be

21 talking about decades rather than years. And there will

22 be very little that me or somebody like me will be able

23 to say or prove or show that will be of any real help or

24 guidance to the Court.

25 Now I understand the Court ruled against us on the

App. 17


11

1 crime of violence issue and we don't -- we understand

2 the Court's reasons, but we still object. And we also

3 understand look, in no sense do we want to minimize that

4 behavior. It's dangerous. Cars are dangerous vehicles.

5 But the guideline range simply of six levels, it almost

6 doubles his guideline range for just in the same way as

7 if he had kidnapped somebody or burned down a building

8 or committed a homicide. That should set off alarm

9 bells; that should trouble the Court that maybe the

10 guidelines aren't truly reflecting what the purposes of

11 sentencing are.

12 Now, I note also that I didn't bring this up in the

13 sentencing memorandum, but I understand the two levels

14 for a stolen firearm. That's -- I understand the

15 reasons behind that policy. But the firearm was

16 reported stolen in 1979, which is about eleven years

17 before Mr. Gillespie was born. So it's not as if he

18 stole it or could possibly have been involved in its

19 theft.

20 THE COURT: I'm not sure that is the point of

21 the guideline range, but I will tell you that the

22 guideline range is not the driver for the Court now.

23 It's trying to arrive at an appropriate sentence, given

24 all of the history of this defendant and given the facts

25 of his offense here.

App. 18


12

1 MR. MOYERS: Well, then I think we've said it

2 in our sentencing memo that -- and in his letter that,

3 and the letters of the people that support him. There

4 are people that care about him. On the other hand, he

5 hasn't done very well with the social circumstances he's

6 had. He has managed to keep getting into trouble when

7 he's obviously intelligent and has abilities. He cares

8 about the people in his life, but he keeps screwing up

9 and has to sit before you or somebody like you. And I

10 think if the Court -- to the extent the Court is going

11 to weigh his history and characteristics, I think the

12 Court should acknowledge that it's a mixed bag with some

13 real -- with some reasons for pessimism, but some other

14 reasons.

15 As the Court pointed out, his age and his obvious

16 intelligence, that will give some basis for hope. So

17 that's what I'm going to leave the Court with. I don't

18 think Mr. Gillespie would like to speak, but he does

19 have the chance if he's changed his mind.

20 THE COURT: Mr. Gillespie, I did read your

21 written letter, which I guess the government's counsel

22 is skeptical of. But I'm happy to hear anything more

23 that you'd like to say to the Court.

24 THE DEFENDANT: That's all. I hope that you

25 take that into consideration. I would just like to

App. 19


13

1 thank my family for their time and support. That's all.

2 THE COURT: One of the most difficult things

3 about this case is that there's obviously a lot of

4 caring within your family and yet your family is also

5 partly responsible for pulling you down. On the other

6 hand, ultimately you made the choices that you made.

7 And it is disturbing to think of a young man who's

8 boastfully talking about adopting a lifestyle which

9 involves drugs and guns, which is the kind of

10 combination that is either going to put you in prison

11 for a very long time -- and you're going to get a longer

12 sentence than you've ever had before today,

13 substantially longer. And as your counsel says, next

14 time if you're not -- if you're not killed on the street

15 with drugs and guns involved, you're likely to be locked

16 up for the better part of your life. You understand

17 that that's the kind of lifestyle that you're boasting

18 about.

19 THE DEFENDANT: Yes, Your Honor.

20 THE COURT: You know, I know you do --

21 intelligently I think you do, but I'm not sure you do in

22 a way that's meaningful to changing your behavior.

23 Because for every statement or motivation for better

24 behavior, there is the attraction, whatever attraction

25 there is, whether it's money or the lifestyle or others

App. 20


14

1 of this life you've chosen to date. You're going to

2 have to find reasons to get up in the morning that don't

3 have to do with gearing to be the man and that's

4 something that only you can do. At age 24, you can

5 definitely still do it. But it's a difficult thing for

6 me to weigh this likelihood, that if you don't change

7 your ways you're going to kill yourself or somebody

8 else, against the potential that you still have.

9 You understand that that's part of what I'm

10 supposed to weigh in sentencing?

11 THE DEFENDANT: Yes, Your Honor.

12 THE COURT: All right. I am prepared to render

13 sentence. The defendant is a 24-year-old young man with

14 an extensive history of criminal conduct. His criminal

15 history began at age 12 and has continued seemingly

16 unabated since then.

17 The defendant was sentenced to a juvenile

18 correctional facility at age 13. At 15, the defendant

19 had his first drug-related arrest, suggesting that the

20 defendant has been involved in drug distribution for

21 almost a decade.

22 At the age of 16, the defendant was convicted of

23 felony bail jumping in adult court and sentenced to

24 prison in the adult correctional institution. The

25 defendant's mother, father, and siblings have also been

App. 21


15

1 involved with the correctional system. In particular,

2 his father has been incarcerated since this defendant

3 was six years of age, and for much of his life even

4 before then, and his mother has struggled with her own

5 demons, as she herself put it, after being on the street

6 or incarcerated himself -- herself for much of the

7 defendant's childhood. In fact, the defendant reports

8 his mother was basically incarcerated from the age --

9 his age of 5 until he was 14.

10 Despite his grandparents' attempts to provide him a

11 stable home environment, the defendant ended up joining

12 in the criminal conduct around him; not just his family,

13 but in the neighborhood. The defendant admitted to law

14 enforcement that he is addicted to a drug-dealing

15 lifestyle. He also acknowledged using the skills and

16 tools taught to him in drug treatment programs to make

17 himself a better drug dealer, which is I guess probably

18 among the most disturbing statements that he made.

19 The defendant began using marijuana regularly

20 himself at age 12 and has been a daily user since age

21 22. He also consumed alcohol daily before his arrest

22 for the instant offense, and despite completing drug

23 treatment in the past and expressing a need for

24 substance abuse treatment now, has not managed to change

25 his behavior.

App. 22


16

1 The defendant has spent a significant amount of his

2 teenage and adult life incarcerated. His criminal

3 history consists of the following convictions:

4 Disorderly conduct; battery; take and drive vehicle

5 without consent; criminal damage to property; felony

6 bail jumping; obstructing an officer; fleeing and

7 eluding an officer, and felon in possession of firearm.

8 His state probation has been revoked on numerous

9 occasions. None of his prior convictions appear to have

10 impacted his decision to continue a criminal lifestyle

11 or to be a productive law-abiding citizen. In fact, the

12 defendant's most recent period of incarceration was for

13 possession of a firearm. The defendant's criminal

14 conduct involving drugs and firearms make him a danger

15 to the community.

16 To his credit, the defendant obtained, as counsel

17 noted, his high school equivalency diploma and completed

18 a forklift operator course while incarcerated, although

19 apparently put neither to use upon release. He also

20 demonstrates intelligence necessary to bring himself

21 into compliance, as demonstrated by his past conduct in

22 prison, which appears to have been generally exemplary.

23 Perhaps that structure of prison is something that has

24 been lacking otherwise. His longest sentence to date

25 has been just three years.

App. 23


17

1 Finally, while carrying a firearm for protection

2 and fleeing police, notwithstanding, as the Court noted,

3 the defendant does not have a history of violent acts

4 against others, and I don't mean to minimize the risk

5 that that is in his future if he continues on the path

6 he's followed. And as importantly for the Court and its

7 responsibility, the future of those who are around him,

8 including his loved ones, but society as a whole.

9 Nevertheless, these factors are reason for some

10 hope and for some downward departure under Section

11 5K2.0. As to the instant offense, on October 8, 2014,

12 the defendant was arrested by law enforcement in Rock

13 County, Wisconsin after being observed participating in

14 a suspected drug transaction. At the time of the

15 offense, the officers located a Smith and Weston --

16 Smith and Wesson; cocaine; two cellphones, one of which

17 was actively scanning police channels, and a digital

18 scale with THC residue. At that time, the defendant had

19 been previously convicted of a crime punishable by a

20 term of imprisonment exceeding one year, specifically

21 fleeing and eluding law enforcement officers in

22 possession of a firearm by a felon.

23 With all of these factors, taking into

24 consideration the nature of the offense, as well as the

25 defendant's personal history and characteristics, I am

App. 24


18

1 persuaded that a custodial sentence of seven years is

2 reasonable and no greater than necessary to hold the

3 defendant accountable, protect the community, provide

4 the defendant the opportunity for rehabilitative

5 programs, and achieve parity with the sentences of

6 similarly situated offenders.

7 As to the one-count Indictment, it is adjudged the

8 defendant is committed to the custody of the Bureau of

9 Prisons for a term of 84 months. The defendant is

10 already serving a term of extended supervision and

11 probation in Rock County Circuit Court, Case Numbers

12 2010-CF-2262 and 2012-CF-435 when he committed the

13 instant offense. The state has initiated revocation

14 hearings. He also has a pending case in Rock County

15 Circuit Court, Case Number 214 -- 2014-CF-2383.

16 Supreme Court's ruling in Setser v. United States,

17 132 S.Ct. 1463, provides the Court with discretion to

18 order this sentence run consecutive or concurrent with

19 the imposition of any sentence with respect to

20 defendant's pending state cases. I will stand silent in

21 those matters, considering the state court to be in a

22 better position to determine, based on independent

23 findings, whether those sentences should be concurrent

24 or consecutive, if and when appropriate.

25 I recommend that the defendant receive vocational

App. 25


19

1 training, mental health, and drug treatment, including

2 the RDAP Program, whether or not he's eligible for a

3 reduction of sentence under that program. I've no doubt

4 that he would benefit from it. And I also recommend

5 that he be afforded pre-release placement in a

6 residential re-entry center with work release

7 privileges.

8 A term of supervised release is not required by

9 statute in this case. Based on the defendant's conduct

10 and personal characteristics, however, including the

11 danger he presents to the community because of his

12 current and past involvement in drug distribution and

13 possession of firearms, the term of imprisonment is to

14 be followed by a three-year term of supervised release.

15 Pursuant to the Sentencing Reform Act of 1984, the

16 primary goals of imprisonment and to provide for

17 rehabilitation supervision will be required here. In

18 this case, it will provide the defendant with needed

19 correctional programming, including rehabilitative

20 programs, to assist with community reintegration, afford

21 adequate deterrence to future criminal conduct, and

22 protect the public from further crimes perpetrated by

23 the defendant. Specifically, the standard conditions

24 will allow the supervising probation officer to monitor

25 and ensure the defendant is maintaining legitimate

App. 26


20

1 employment, living within his means, refraining from

2 drug use, and criminal associations. Committing no new

3 violations. Accordingly, I adopt Standard Conditions 2,

4 3, 5 through 11 as outlined in the appendix to the

5 revised presentence report.

6 In light of the nature of the offense and the

7 defendant's personal history, I adopt as well the

8 special conditions proposed in the presentence report

9 for the reasons that are set forth there, noting that

10 neither party has raised objections to those proposals

11 except for suggested modified language by the government

12 to address recent Seventh Circuit decisions, all of

13 which will be incorporated.

14 The search condition is warranted based on the

15 nature of the offense and conviction and the defendant's

16 history of possessing firearms, the defendant's criminal

17 history, and the need to protect the public.

18 As to the financial monitoring condition, it is

19 noted that the defendant's relevant conduct involved

20 illegally selling crack cocaine for profit. He also

21 admitted to using past treatment programs to learn how

22 to become a better dealer. The defendant has not

23 maintained stable employment and likely has supported

24 himself through the sale of controlled substances. He

25 has a negative net worth, including accounts in

App. 27


21

1 collections.

2 The defendant will be required, per statute, to pay

3 a $100 assessment. Finally, he is legally obligated to

4 pay state and federal income tax, all of which justify

5 financial monitoring in this case.

6 A drug testing and treatment condition is imposed

7 on defendant's self-report and documented substance

8 abuse history, the nature of this offense, and to comply

9 with the provisions of Section 3583(d) Title 18. If

10 either the defendant or the supervising probation office

11 believes that any of the conditions imposed today are no

12 longer appropriate, either one may petition the Court

13 for review when the defendant is released from

14 confinement to begin his term of supervised release.

15 It is adjudged the defendant is to pay a $100

16 criminal assessment penalty to the Clerk of Court for

17 the Western District of Wisconsin, which is required by

18 statute, immediately following sentencing. I do find,

19 however, that defendant does not have the means to pay

20 any fine under Section 5E1.2(c) without impairing his

21 ability to support himself and his children upon release

22 from custody and so no fine will be imposed.

23 The U.S. Probation Office is to notify law

24 enforcement agencies and the State Attorney General of

25 the defendant's release back into the community.

App. 28


22

1 Mr. Gillespie, I know this sentence today is

2 disappointing to you. It's also disappointing to the

3 government. Sometimes they say that that means maybe I

4 got it right. I'm not sure that's right. All I can

5 tell you is I tried to do the best I could under a bad

6 set of circumstances; some of them beyond your control,

7 including how you were raised and the challenges that

8 you faced. But there are people who overcome those

9 challenges and you can still be one of them.

10 It's possible in prison for you to make something

11 more of your life. It's possible, as you saw, to get

12 training. But it's also possible to gain insight, and

13 most of that insight is going to have to be your own;

14 whether you're allowed into the residential drug

15 program, which has demonstrated real ability to change

16 people's thinking if they're open to it. You just have

17 to -- I'm not going to say grow up because you're a

18 24-year-old grown man -- but I am going to say mature.

19 You have to gain insights. And the best way to do that

20 is to read. You're going to have time to do it.

21 There are amazing stories of people who have turned

22 their lives around. Malcolm X. Nelson Mandela.

23 There's biographies and autobiographies of those men who

24 faced challenges that at least meet, if don't exceed in

25 the case of Nelson Mandela, much more than you faced.

App. 29


23

1 You can grow out of what you've done. You can be a

2 source of inspiration to your family who loves you and

3 to your children, and more importantly to yourself. You

4 can feel good about your life.

5 But as you know, having spent some time in prison,

6 most people are marking time there, or worse, getting

7 involved in more trouble. There is a group, however,

8 who is trying to better themselves, and within the

9 federal institutions there are facilities and resources

10 to do that. I can only urge you to take advantage of

11 them. Because your counsel is right. If you come back

12 out and adopt a similar approach to your life, the next

13 time you appear in front of a federal judge, you're

14 probably a career offender. You're probably facing

15 mandatory minimum sentences that no judge can ignore.

16 And you will -- I debated saying this but I think it's

17 appropriate -- you will end up like your father.

18 And I don't -- the reason I hesitate to say that is

19 I don't think anyone is destined to a particular result.

20 And the fact that your father made major missteps and

21 ended up with an incredibly long sentence doesn't mean

22 that you will. But it does mean that if you don't find

23 a way to walk the walk, not just talk the talk, if you

24 don't find a reason to do that, something positive in

25 your life, whether it's your children or just knowledge

App. 30


24

1 or a job you can be proud of, you've got to find

2 something positive to build on and let that be your

3 motivation.

4 But my talking isn't going to do it either and it's

5 entirely up to you what you do with the next chapter of

6 your life. I will hope and pray that you make some good

7 choices and that you mature.

8 With that said, I'll hear if there's anything more

9 for the government.

10 MS. RUMBELOW: Nothing -- no, Your Honor,

11 nothing from the government.

12 THE COURT: All right. Anything more from --

13 MR. MOYERS: Nothing from --

14 THE COURT: -- the defense?

15 MR. MOYERS: Nothing more from the defense.

16 THE COURT: You have very capable counsel who

17 can advise you on your right to appeal this Court's

18 sentence. You have a very short time to do so, ten

19 days. While I'd like you to focus on what you can make

20 for the rest of your life, it's perfectly appropriate to

21 consider whether an appeal is necessary, and you can

22 discuss that with your counsel and I encourage you to do

23 that.

24 Thank you. We are in brief recess.

25 (Proceedings concluded at 1:37 p.m.)

App. 31


25

1 I, LYNETTE SWENSON, Certified Realtime and

2 Merit Reporter in and for the State of Wisconsin,

3 certify that the foregoing is a true and accurate record

4 of the proceedings held on the 24th day of March 2015

5 before the Honorable William M. Conley, Chief Judge for

6 the Western District of Wisconsin, in my presence and

7 reduced to writing in accordance with my stenographic

8 notes made at said time and place.

9 Dated this 27th day of March 2015.

10

11 /s/___________________________

12 Lynette Swenson, RMR, CRR, CBC Federal Court Reporter

13

14

15

16

17 The foregoing certification of this transcript does not apply to any reproduction of the same by any means

18 unless under the direct control and/or direction of the certifying court reporter.

19

20

21

22

23

24

25

App. 32


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