United States of America v. Jack A. Clayborne

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2370
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JACK A. C LAYBORNE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 18-cr-00109 — Pamela Pepper, Chief Judge.
____________________
A RGUED M AY 20, 2024 — DECIDED J UNE 27, 2024
____________________
Before F LAUM , BRENNAN , and K OLAR , Circuit Judges.
F LAUM , Circuit Judge. Jack Clayborne was convicted of
crimes arising out of an attempted carjacking. He challenges
his sentence on two grounds, arguing that either requires re-
sentencing. Finding neither argument persuasive, we affirm.

-- 1 of 11 --

2 No. 23-2370
I. Background
A. Factual Background
When Michael Guster exited his vehicle after parking it in
his garage, three men attempted to carjack him. First, Eric
Booker approached with a gun, shouting at Guster. Then, Jack
Clayborne—the defendant in this case—walked up and fired
five shots. One bullet hit Guster, traveling through both his
legs. Guster, a concealed carry permit holder, returned fire,
striking Booker in the torso. Clayborne fled, but Sylvance
Brown, who was waiting nearby as a getaway driver, took
Booker to the hospital. Clayborne remained at large for nearly
two years before being apprehended.
B. Procedural Background
In time, Clayborne was charged with attempted motor ve-
hicle robbery in violation of 18 U.S.C. § 2119(2), discharge of
a firearm during an attempted robbery in violation of 18
U.S.C. § 924(c)(1)(A), and possession of a firearm and ammu-
nition by a felon in violation of 18 U.S.C. § 922(g)(1). Booker
and Brown, who were both convicted for their participation,
testified at Clayborne’s trial that carjacking Guster was Clay-
borne’s idea.
A jury found Clayborne guilty on all counts, and the dis-
trict court sentenced him to 234 months’ imprisonment, 120
months of which corresponded to the § 924(c)(1)(A) convic-
tion. At sentencing, the district court denied Clayborne an ac-
ceptance of responsibility reduction under the Sentencing
Guidelines because Clayborne had not admitted to his crimes.
See U.S.S.G. § 3E1.1.

-- 2 of 11 --

No. 23-2370 3
Clayborne appealed his sentence, and we remanded for
resentencing after the government agreed to dismiss his
§ 924(c)(1)(A) conviction in light of United States v. Taylor, 596
U.S. 845 (2022).
In advance of resentencing, Clayborne submitted a letter
to the district court, expressing regret for his actions. The dis-
trict judge considered the letter but found it insufficient to
warrant an acceptance of responsibility reduction. At the re-
sentencing hearing she remarked, “I hate to use that hack-
neyed expression ‘too little too late,’ but I think that [the let-
ter] is.”
Then, when explaining the factors motivating her sentenc-
ing decision, the district judge noted:
The guidelines are as high as they are for a rea-
son, and part of that’s your past history, which
I commented about [at the first sentencing]. It’s
not necessarily—You don’t have 17 [criminal
history] points because you committed homi-
cides and sexual assaults, some of it’s robbery, a
lot of it’s robbery.
Clayborne was resentenced to 223 months in prison,
eleven months fewer than his previous sentence, and ap-
pealed once more.
II. Discussion
Clayborne challenges two aspects of his sentence: (1) the
district court’s decision not to award him an acceptance of re-
sponsibility reduction, and (2) the district court’s comment
that his criminal history included “a lot of” robberies when he
had no prior robbery convictions.

-- 3 of 11 --

4 No. 23-2370
A. Acceptance of Responsibility Reduction
We review de novo whether the district court committed
procedural error by “failing to explain adequately” its deci-
sion to deny an acceptance of responsibility reduction. United
States v. Smith, 860 F.3d 508, 514 (7th Cir. 2017). If its explana-
tion was sufficient, we review for clear error its factual deci-
sion not to award a criminal defendant the reduction. United
States v. Robinson, 942 F.3d 767, 770 (7th Cir. 2019). The bar is
high. To reverse, we must be left with “the definite and firm
conviction that a mistake has been made.” Id. (citation omit-
ted).
“A sentencing court errs procedurally when it fails to ex-
plain adequately the chosen sentence.” United States v.
Shoffner, 942 F.3d 818, 822 (7th Cir. 2019). However, there is
no bright-line rule about “when [courts] have said enough.”
Id. (citation omitted). The touchpoint is whether the record is
sufficient to permit the reviewing court “to discern the con-
siderations which motivated the district court’s sentencing
decision.” United States v. Garcia-Oliveros, 639 F.3d 380, 382
(7th Cir. 2011) (remanding for resentencing “[i]n light of the
sentencing judge’s complete silence”). When the record is
“too thin” to allow review, the sentencing court committed
procedural error and resentencing is necessary. Id.
No procedural error occurred in this case. Contrary to
Clayborne’s contention, the sentencing court did much more
than conclude his letter was “too little too late.” Context is im-
portant. See Shoffner, 942 F.3d at 822. The court explained that
at Clayborne’s first sentencing he offered “a fairly full-
throated denial” of the offense conduct. Although the court
recognized the letter Clayborne submitted in advance of re-
sentencing was “a different sentiment” than he expressed at

-- 4 of 11 --

No. 23-2370 5
his first sentencing, the letter “carefully tread[ed] around
whatever it [was] that Mr. Clayborne [was] apologizing for.”
While the court appreciated Clayborne’s expression of re-
morse, it nonetheless concluded the letter was “a far cry” from
what was necessary to warrant an acceptance of responsibil-
ity reduction.
This is not a case where the district court failed to “reveal
either a factual or a legal basis to support [its decision]” and
left us with no reasoning at all to review. Smith, 860 F.3d at
517; see also Garcia-Oliveros, 639 F.3d at 382. It is abundantly
clear from the sentencing transcript what the district court be-
lieved was missing from Clayborne’s letter: his truthful ad-
mission of the offense conduct. See Smith, 860 F.3d at 516.
Because the district court adequately explained its reason-
ing, it did not commit procedural error, and we turn to
whether its decision not to award an acceptance of responsi-
bility reduction was clearly erroneous. Clayborne argues that
it was because the decision was founded on the erroneous be-
lief that his letter was “too little” and “too late.” We take each
point in turn.
1. Admitting Offense Conduct
The district court did not clearly err in finding that Clay-
borne’s letter was substantively insufficient to justify an ac-
ceptance of responsibility reduction.
Guideline § 3E1.1, Application Note 1, offers eight non-ex-
haustive considerations when determining if an acceptance of
responsibility reduction is appropriate. Clayborne’s appeal
centers on one: whether Clayborne “truthfully admit[ted] the

-- 5 of 11 --

6 No. 23-2370
conduct comprising the offense(s) of conviction.” § 3E1.1,
cmt. n.1(a).
The acceptance of responsibility reduction is intended to
benefit defendants who “clearly accept responsibility for the
conduct comprising [their] offense of conviction.” United
States v. Hammick, 36 F.3d 594, 598–99 (7th Cir. 1994) (affirm-
ing denial of acceptance of responsibility reduction where the
district court found the defendant failed to provide “a candid
and full unraveling” of his offense conduct (citation omitted)).
While the defendant need not admit to additional relevant
conduct, the sentencing judge is free to “requir[e] the defend-
ant to provide a complete and credible explanation of the con-
duct involved in the offense of conviction itself.” Id. at 599.
Judges also have discretion to award an acceptance of respon-
sibility reduction only to defendants who “forthrightly
avow[] responsibility for [their] crime.” Id. at 600.
For example, in United States v. Ghuman, the district court
denied the defendant an acceptance of responsibility credit in
part because he “failed to admit his central role in the bank
fraud scheme.” 966 F.3d 567, 572 (7th Cir. 2020). We affirmed.
While Ghuman “acknowledged his participation in the over-
all scheme to defraud the bank,” he “affirmatively down-
played his role in the … scheme and denied culpability for
certain aspects of the fraud.” Id. at 573. The district court’s
conclusion that Ghuman failed to “fully acknowledge[] either
his degree of culpability or the scope of harm that his ac-
tions … caused” was not a clearly erroneous basis for denying
the acceptance of responsibility reduction. Id. at 574.
While Clayborne expressed remorse, his letter lacked
specificity. He said he was sorry “for the events that

-- 6 of 11 --

No. 23-2370 7
transpired” but did not describe the events. He apologized
“for the damage” he did to Guster but did not identify what
he did that caused damage. He admitted he “was wrong for
participating in this offense” but failed to specify the extent of
his participation. The lack of specificity in Clayborne’s letter
left open the possibility that he accepted responsibility for
only a fraction of the offense conduct. Sentencing judges have
the prerogative to require more transparency from defend-
ants.1
This lack of detail is especially salient for the same reason
it was in Ghuman. Both defendants argued that another per-
son was responsible for their crimes. Id. at 576. At trial, Clay-
borne denied participating in the attempted carjacking, argu-
ing he did not match the shooter’s description, but Brown did.
That strategy extended to his “fairly full-throated denial” at
his first sentencing where he maintained he was not the
shooter, even if there was “a good argument that [he] was
somewhere on the crime scene.” “[B]laming someone else for
one’s own actions or minimizing one’s involvement in the of-
fense is not the sort of genuine contrition the acceptance of
responsibility reduction seeks to reward.” United States v. Ali,
619 F.3d 713, 720 (7th Cir. 2010).
1 Clayborne argues that the lack of detail in his letter should be ex-
cused given his limited education. But Clayborne is a native English
speaker who obtained a High School Equivalency Diploma. Most im-
portant, the district court remarked during sentencing that Clayborne was
“very intelligent” and expressed himself very well—information it
gleaned over repeated interactions in Clayborne’s criminal case and sev-
eral lawsuits he filed. That factual conclusion is not clearly erroneous, so
we cannot disturb it. See United States v. Suarez, 225 F.3d 777, 779 (7th Cir.
2000).

-- 7 of 11 --

8 No. 23-2370
2. Timing of Clayborne’s Letter
Clayborne separately takes issue with the district court’s
comment that his letter was “too late.” He argues that the
court’s denial of the reduction was premised on its mistaken
belief that acceptance of responsibility manifested before re-
sentencing—but not before the defendant’s first sentencing—
is insufficient to justify the reduction.
Clayborne’s legal contention is correct but his interpreta-
tion of the district court’s reasoning is not. True, district courts
presiding over “resentencing may consider evidence of the
defendant’s postsentencing rehabilitation and that … evi-
dence may … support a downward variance from
the … Guidelines range.” Pepper v. United States, 562 U.S. 476,
481 (2011). But “[a] defendant cannot obtain reversal [of his
sentence] merely by identifying statements that appear prob-
lematic when taken out of context; a defendant must also
show that the judge actually relied on an impermissible factor
to arrive at the sentence imposed.” See United States v. Shaw,
39 F.4th 450, 460 (7th Cir. 2022).
Here, when assessing whether the letter merited a reduc-
tion under § 3E1.1, the court’s focus was on the insufficiency
of its substance. Besides the passing reference to the letter be-
ing “too late,” the court said nothing indicating that the tim-
ing of the apology factored into its decision. The court cor-
rectly found the letter was “too little” to justify the reduction
so the “hackneyed” expression came to mind to drive home
the point.
Moreover, the district court did take Clayborne’s postsen-
tencing rehabilitation into account, following Pepper’s guid-
ance. It did so through the 18 U.S.C. § 3553(a) factors,

-- 8 of 11 --

No. 23-2370 9
remarking that Clayborne’s letter, which reflected a “distinct
change … in [his] attitude,” earned him an eleven-month re-
duction in his sentence. Pepper does not require district courts
to consider such evidence specifically for an acceptance of re-
sponsibility reduction under § 3E1.1.
On this record, the district court did not clearly err in find-
ing that Clayborne’s failure to own up to his offense conduct
justified withholding the acceptance of responsibility reduc-
tion.
B. Criminal History
Clayborne’s second challenge centers on the district
court’s statement that his criminal history included “a lot
of … robbery” when he had no prior robbery convictions. We
review de novo Clayborne’s argument that the district court
erred by relying on this incorrect information when fashion-
ing his sentence. United States v. Oliver, 873 F.3d 601, 607–08
(7th Cir. 2017).
Although Clayborne had never been convicted of robbery,
his extensive criminal history includes convictions for theft,
attempted theft, burglary, and attempted burglary. Many of
his prior offenses have similar hallmarks as robbery, a fact the
district court recognized at his first sentencing. It remarked
that Clayborne “ha[s] [a] history of criminal activity that often
involves taking things that don’t belong to him, culminating
with this crime in which he almost took not only a car that
didn’t belong to him, but someone else’s life.”
Identifying a misstatement is not a fast track to resentenc-
ing. See United States ex rel. Welch v. Lane, 738 F.2d 863, 865 (7th
Cir. 1984). Clayborne must identify evidence of reliance, that
is, show that the court “gave the misinformation specific

-- 9 of 11 --

10 No. 23-2370
consideration so that [it] formed part of the basis of the sen-
tence.” Id. at 866 (citation and internal quotation marks omit-
ted); see also United States v. Jones, 454 F.3d 642, 652 (2006).
While “[t]he standard for determining whether the district
court relied on improper information is a low one,” resentenc-
ing is only warranted if there is evidence “that the judge mis-
apprehended the record with respect to an aggravating factor
that the judge considered important.” United States v. Miller,
900 F.3d 509, 513–14 (7th Cir. 2018) (citation omitted).
There is no evidence of reliance in this case because Clay-
borne’s criminal history had no bearing on the revised sen-
tence the district court fashioned. See Shaw, 39 F.4th at 460. At
resentencing, the court’s focus was on whether Clayborne’s
sentence should be altered in light of the vacated
§ 924(c)(1)(A) conviction. Two factors supported Clayborne’s
original sentence: (1) his criminal history, and (2) his attitude,
in denying his involvement in the crimes. Pondering an ap-
propriate revised sentence, the court explained that little had
changed since Clayborne’s first sentencing. Most importantly,
it remarked, “nothing’s changed with regard to Mr. Clay-
borne’s criminal history, that’s all the same as it was in the
prior sentencing.” The only change was Clayborne’s contrite
attitude, reflected in his letter. The district court explained
that warranted a slightly shorter term of incarceration. Far
from giving “explicit attention” or “specific consideration” to
Clayborne’s prior offenses, Miller, 900 F.3d at 513, the court at
resentencing focused on the only factor that changed and
therefore mattered: Clayborne’s expression of remorse.
What is more, we are unconvinced that the court’s refer-
ence to robberies reflects genuine misunderstanding. Given
the district court’s accurate description of Clayborne’s

-- 10 of 11 --

No. 23-2370 11
criminal history at his first sentencing and the familiarity it
demonstrated with Clayborne’s case throughout his resen-
tencing, this reference appears to have been inartful short-
hand for the general nature of Clayborne’s past convictions.
See United States v. Kanan, No. 21-1755 & 21-1756, 2022 WL
2255863, at *2 (7th Cir. June 23, 2022) (“[I]f a district judge
merely misspeaks—rather than bases the sentence on inaccu-
rate information—no deprivation of th[e] right [to be sen-
tenced based on accurate information] has occurred.”); United
States v. Nowicki, 870 F.2d 405, 408 (7th Cir. 1989).
In any event, it is clear that the district court did not base
Clayborne’s sentence on an erroneous belief that he had com-
mitted prior robberies.
III. Conclusion
For these reasons, we A FFIRM .

-- 11 of 11 --