Argued: December 4, 2019
from the United States District Court for the Northern
District of Ohio at Cleveland. No. 1:17-cr-00287-1-John R.
Adams, District Judge.
CHRISTOPHER M. BRUNO, MCDERMOTT WILL & EMERY, LLP,
WASHINGTON, D.C., FOR APPELLANT.
A. EWING, UNITED STATES ATTORNEY'S OFFICE, CLEVELAND,
OHIO, FOR APPELLEE.
CHRISTOPHER M. BRUNO, PAUL M. SCHOENHARD, LE CHEN, MCDERMOTT
WILL & EMERY, LLP, WASHINGTON, D.C., CHRISTOPHER M.
BRUNO, TENSEGRITY LAW GROUP LLP, MCLEAN, VIRGINIA, FOR
ELZEIN, UNITED STATES ATTORNEY'S OFFICE, CLEVELAND, OHIO,
Before: MOORE, CLAY, and SUTTON, Circuit Judges.
J., delivered the opinion of the court in which CLAY, J.,
joined. SUTTON, J. (pp. 16-20), delivered a separate
NELSON MOORE, Circuit Judge
Hatcher, Jr. pleaded guilty to felon in possession of a
firearm and escape, and the district court sentenced him to
seventy-two months in prison, which was an upward variance of
twenty-one months from the top of the Guidelines range.
Hatcher now appeals this sentence on the grounds that it is
procedurally and substantively unreasonable. For the reasons
set forth in this opinion, we VACATE the
sentence of the district court and REMAND
for resentencing consistent with this opinion.
March 16, 2017, Andre Hatcher, Jr. escaped from the Oriana
House Residential Reentry Center (RCC), where he was confined
by virtue of a forty-six-month sentence for felon in
possession of a firearm. R. 17 (PSR ¶ 10) (Page ID #97).
On April 13, 2017, law enforcement responded to a call
regarding a shooting and found Hatcher lying on the ground
with a gunshot wound to the head. Id. ¶ 8.
While performing first aid on Hatcher, an officer observed a
firearm tucked in Hatcher's waistband. Id. After
Hatcher was taken to the hospital, he left and was not
apprehended until May 2018, when he was found by law
enforcement after being shot again. R. 26 (Sent'g
Hr'g Tr. at 12) (Page ID #153).
19, 2017, Hatcher was named in a one-count indictment. R. 1
(Indictment) (Page ID #1). On May 30, 2018, after
Hatcher's recapture, a two-count Superseding Indictment
was filed, adding a count for his escape from the RCC. R. 11
(Superseding Indictment ¶ 2) (Page ID #31). On July 9,
2018, Hatcher pleaded guilty to both counts: Felon in
Possession of a Firearm and Ammunition (Count 1), 18 U.S.C.
§ 922(g)(1), 18 U.S.C. § 924(a)(2); and Escape
(Count 2), 18 U.S.C. § 751(a).
October 5, 2018, the district court gave notice of a possible
upward variance in advance of Hatcher's sentencing
hearing, based upon the following 18 U.S.C. § 3553(a)
1. The nature and circumstances of the offense.
2. The history and characteristics of the defendant,
including his criminal history.
3. The need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law,
to provide just punishment for the offense, to afford
adequate deterrence to criminal conduct, and to protect the
public from further crimes of the defendants.
R. 19-1 (Notice of Possible Upward Variance) (Page ID #125).
sentencing hearing took place on October 18, 2018. At the
hearing, the parties agreed that the guidelines range was
forty-one to fifty-one months, and the district court
reiterated that it had given notice of a possible upward
variance. R. 26 (Sent'g Hr'g Tr. at 5) (Page ID
#146). Hatcher's counsel proceeded to provide background
on the adversity that Hatcher had encountered throughout his
life, including multiple stabbings and gunshot wounds, a
physically abusive father, diagnoses for bipolar disorder and
depression, attempted suicide, and a history of extensive
substance abuse. Id. at 5-9. The government then
stated it was seeking a sentence "at the high end of the
guideline range." Id. at 11.
its statement, the Assistant U.S. Attorney responded to
Hatcher's assertion that he carried the firearm for
protection as follows:
I would submit that the possession of the firearm was not
solely for protection. The investigation revealed that shell
casings discovered from a shooting three days prior to when
the defendant was shot [on April 13, 2017] matched the
firearm that he had on his person.
So while, of course, I don't know the specifics of what
happened then, I think that certainly suggest[s] a
possibility that the defendant was involved in a shooting
three days prior and perhaps his victimization on the day of
the offense was in retaliation for that. I don't know.
Id. at 11-12. The AUSA then confirmed with the
district court that the government had shell casings that
matched the firearm found on Hatcher, and stated: "He
keeps going back to this very same difficult area, and he
keeps being involved in these difficult situations and these
violent situations." Id. at 12. An ATF special
agent affirmed that the firearm was used three days prior to
when Hatcher was shot on April 13; that in the course of the
earlier shooting, two non-party victims were shot; and that
one of the victims may have fired at the other. Id.
at 15. Of the seven spent shell casings, four matched the
firearm found on Hatcher three days later. Id.
district court and Hatcher's counsel then debated whether
Hatcher was justified in escaping from the RCC. Id.
at 15-18. The district court rejected Hatcher's argument
and stated: "And that's why he's going off
unfortunately to serve a very lengthy time, because the
circumstances here and the history here, the possession of
the gun, and obviously the gun, whether ...