United States of America v. Alfred E. Jerry

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1302
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A LFRED E. JERRY ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:19-cr-20040-MMM-EIL-1 — Michael M. Mihm, Judge.
____________________
A RGUED NOVEMBER 29, 2022 — DECIDED D ECEMBER 22, 2022
____________________
Before S YKES , Chief Judge, and H AMILTON and BRENNAN ,
Circuit Judges.
BRENNAN , Circuit Judge. After robbing a cellphone store at
gunpoint, Alfred Jerry pleaded guilty to three crimes, includ-
ing Hobbs Act robbery. The district court sentenced Jerry as a
career offender under the Sentencing Guidelines. Jerry ap-
pealed that designation, and we remanded for resentencing
based on our holding in Bridges v. United States, 991 F.3d 793,
797 (7th Cir. 2021), that Hobbs Act robbery is not categorically

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2 No. 22-1302
a “crime of violence.” United States v. Jerry, 996 F.3d 495, 496–
97, 499 (7th Cir. 2021) (Jerry I). On remand, the district court
resentenced Jerry to 171 months’ imprisonment and a period
of supervised release. Jerry appeals the new sentence, arguing
that the district court committed procedural error and that the
sentence is substantively unreasonable. We affirm.
I. Background
On May 2, 2019, Alfred Jerry entered a cellphone store
with a revolver. He encountered an employee and instructed
him not to move. When a second employee entered the store,
Jerry threatened to shoot both employees. He ordered one to
lock the front door and turn off the “open” sign and directed
the other to the safe room where the store kept its phones.
Jerry handed the employee a bag and told him to fill it with
phones, and he instructed the other employee to turn off the
surveillance cameras. Once the bag had been filled, Jerry took
one employee’s personal phone and both employees’ keys. He
also took $12 from the wallet of one of the employees while
holding that employee at gunpoint. Jerry next ordered both
employees to lie on the floor of the safe room before shutting
the door and locking it from the outside. He placed the gun in
his jeans and removed his gloves, throwing them in a trash
can that he took with him as he exited the store. The cellphone
store later determined that Jerry had taken 45 phones and
watches, valued at $31,599.86.
Jerry pleaded guilty to three crimes: obstruction of com-
merce by robbery (Hobbs Act robbery) in violation of 18
U.S.C. § 1951 (Count One), brandishing of a firearm in fur-
therance of a robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
(Count Two), and possession of a firearm by a felon in viola-
tion of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count Three). At

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No. 22-1302 3
Jerry’s first sentencing, the district court applied a career of-
fender enhancement based on the classification of Hobbs Act
robbery as a “crime of violence” under the Sentencing Guide-
lines. This designation carries with it an assignment to
criminal history category VI and to offense levels at or near
the statutory maximum.
Jerry’s career offender designation meant he was subject
to a Guidelines range of 292 to 365 months’ imprisonment for
all counts. The district court imposed an aggregate sentence
of 264 months. We reversed, Jerry I, 996 F.3d at 496, in light of
Bridges, 991 F.3d at 797.
On remand, the Probation Office prepared a resentencing
memorandum which explained that the effective Guidelines
range on all counts was 135 to 147 months’ imprisonment. A
range of 51 to 63 months applied to Counts One and Three,
and Count Two carried a mandatory minimum of 84 months.
At the resentencing hearing, the government argued that de-
spite the “esoteric application of the categorical approach”
that resulted in a lower Guidelines range, “the same facts”
and “the same history” applied except for Jerry’s completion
of 213 hours of self-study. It therefore recommended 264
months’ imprisonment, the same as the first sentence. The de-
fense, on the other hand, pointed out that many courts have
agreed with this court that Hobbs Act robbery is not a crime
of violence. If the district court disagreed with the Guidelines’
assumption that Hobbs Act robbery is committed non-vio-
lently, the defense emphasized that it was “the Sentencing
Commission’s responsibility” to amend the Guidelines. But
the district court bears responsibility to correctly calculate the
applicable Guidelines range. Per the defense, the district court
was “starting at a very different place than the [c]ourt started

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4 No. 22-1302
during the last sentencing.” The defense thus recommended
a lower sentence of 107 months.
Before imposing sentence, the district court relayed the ap-
plicable Guidelines ranges for Jerry’s offenses and remarked
it had occasionally thought about Jerry’s crimes since the orig-
inal sentencing. The court had considered “what was in the
mind of those two people in the store when [Jerry] went in
there and what was going through their mind[s] as [Jerry]
w[as] committing th[e] robbery.” Jerry had directed the em-
ployees to the safe room, and the district court recognized that
such a scenario often results in death. Although Jerry had not
killed the employees, he had “left them permanently
scarred.” The district court noted the employees would carry
the experience with them for “the rest of their li[ves].”
The district court also considered who Jerry was and what
he had experienced prior to committing the crimes, noting his
background and criminal history. The court commented it
was “a very good thing” that, since Jerry had been in prison,
he had not had any write-ups and engaged in self-study. The
court acknowledged the government’s argument that Jerry
might have done the self-study because he knew he was going
to be resentenced, but the court commended Jerry, noting that
not all defendants did so.
Explaining that the sentence should reflect the seriousness
of the offense, promote respect for law, provide just punish-
ment, and provide adequate deterrence, the court described
the robbery as a “very, very serious crime” and opined that
Jerry was “headed down a totally self-destructive road.” Alt-
hough the court did not entirely disagree that the “sentence
shouldn’t be disproportionate to what others have received,”

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No. 22-1302 5
it observed that Jerry should be sentenced under “all of the
circumstances.”
The district court also labeled the applicable Guidelines
range of 51 to 63 months for Counts One and Three as
“frankly, ridiculous” and stated, “But then, I’m only a district
judge, and so what do I know?” To the court, Jerry’s crime
was only “one heartbeat away from murder,” which “ha[d] to
be reflected in the sentence.” The court declined to adopt the
government’s recommendation to impose the same sentence,
observing that the new sentence should “reflect in some way
the new guideline range.”
The district court resentenced Jerry to a total of 171
months’ imprisonment, with 87 months on Counts One and
Three to run consecutively to 84 months on Count Two. This
new sentence was approximately 16 to 27 percent above the
Guidelines range for all counts but reflected a reduction of 93
months from the prior aggregate sentence. Jerry appeals.
II. Discussion
We review the resentencing here in two steps. United States
v. Major, 33 F.4th 370, 378 (7th Cir. 2022). We first evaluate the
sentence de novo for procedural error. Id. at 378–79. The dis-
trict court is to begin by calculating the applicable Guidelines
range and then must explain the chosen sentence. See United
States v. Morgan, 987 F.3d 627, 632 (7th Cir. 2021). If the court
varies from the Guidelines, it “must adequately explain the
chosen sentence to allow for meaningful appellate review.”
Gall v. United States, 552 U.S. 38, 50 (2007). Procedural errors
include “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, fail-
ing to consider the § 3553(a) factors, selecting a sentence

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6 No. 22-1302
based on clearly erroneous facts, or failing to adequately ex-
plain the chosen sentence—including an explanation for any
deviation from the Guidelines range.” Major, 33 F.4th at 378
(quoting United States v. Faulkner, 885 F.3d 488, 498 (7th Cir.
2018)) (internal quotation marks omitted).
If there is no procedural error, we next review the sentence
for substantive reasonableness. Id. at 379. “[S]ubstantive rea-
sonableness occupies a range, not a point, and … the sentenc-
ing judge is in the best position to apply the § 3553(a) factors
to the individual defendant.” Morgan, 987 F.3d at 632 (quoting
United States v. Warner, 792 F.3d 847, 856 (7th Cir. 2015)) (in-
ternal quotation marks omitted). We therefore review the sen-
tence deferentially, remanding for resentencing only if we
find an abuse of discretion. See id. For sentences above the
Guidelines range, we “must consider the extent of the devia-
tion and ensure that the justification is sufficiently compelling
to support the degree of variance.” Id. (quoting Gall, 552 U.S.
at 50).
A. Procedural Error
Jerry argues the district court procedurally erred at the re-
sentencing in three ways. First, he contends the court permit-
ted the government to argue that Bridges and Jerry I were
wrongly decided and that the same sentence should be im-
posed. Second, he asserts the court’s comment that in its “per-
sonal belief,” the range was “frankly, ridiculous,” reflected a
“mind-set of un-seriousness” and was “not at all the kind of
comment[] that should inform an appropriate sentence.”
Third, he submits the district court failed to adequately ex-
plain the reason it varied upward.

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No. 22-1302 7
The Government’s Arguments at Resentencing. According to
Jerry, the district court bypassed the Guidelines and allowed
the government to argue that the same, 264-month sentence
should be imposed. The government disputes Jerry’s asser-
tion; it says the district court identified the correct Guidelines
range and correctly decided that an upward variance was
appropriate. The government also contests Jerry’s characteri-
zation of its argument at resentencing that applying the cate-
gorical approach produced an absurd result. Because Hobbs
Act robbery can be committed non-violently, applying the
categorical approach meant that Hobbs Act robbery could not
be considered a “crime of violence” under the Guidelines,
even though Jerry’s robbery had, in fact, been committed vio-
lently. Even if the government had taken the position that
Bridges and Jerry I were wrongly decided, it argues that a dis-
trict court does not commit procedural error simply by listen-
ing to purportedly incorrect arguments.
We see no procedural error in the district court’s calcula-
tion and application of the Sentencing Guidelines range. “[A]
district court should begin all sentencing proceedings by cor-
rectly calculating the applicable Guidelines range,” and this
range should serve as “the initial benchmark” for the sen-
tence. Gall, 552 U.S. at 49. The court here correctly calculated
the applicable range. It recognized that the Probation Office
had filed a revised report for purposes of resentencing, which
reflected a “new penalty range.” Accepting that initial bench-
mark, the court explained that the range did not account for
Jerry’s actual conduct during the offense, which it described
as “one heartbeat away from murder.” Because this conduct
“ha[d] to be reflected in the sentence,” the court decided to
deviate from the range. But the substantial deviation the gov-
ernment recommended was not warranted, in the court’s

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8 No. 22-1302
judgment, because the sentence “ha[d] to reflect in some way
the new guidelines range.”
The decisions Jerry cites do not support his claim that the
district court procedurally erred by permitting the govern-
ment to offer certain arguments. He refers to United States v.
Dearborn, 873 F.3d 570, 573 (7th Cir. 2017), and United States v.
Barnes, 660 F.3d 1000, 1006 (7th Cir. 2011), for the proposition
that the government’s arguments about Bridges and Jerry I
were irrelevant and should not have been permitted, as this
court had not ordered a general remand for resentencing. In
Barnes, we explained that on a general remand, “a district
court may permit new arguments and evidence as it deems
necessary to re-fashion its sentence.” 660 F.3d at 1006. Simi-
larly, in Dearborn, after a reversal to correct certain supervised
release conditions, the scope of remand did not include a de-
fendant’s challenge to the earlier denial of his motion to sup-
press and that ruling’s implications on his guilt. 873 F.3d at
571, 573.
In Jerry I, we remanded for resentencing because an incor-
rect Guidelines range had been applied. 996 F.3d at 499. We
also recognized that “a sentencing judge can address” the fac-
tual circumstances of the offense under the § 3553(a) factors,
even though those circumstances are not accounted for in the
range itself. Id. at 498. Here, the district court did not err in
permitting the government to argue that Jerry’s actual con-
duct during the offense was not accounted for by the new
Guidelines range, an argument within the scope of our re-
mand for resentencing.
Comments at Resentencing. The district court stated that the
Guidelines range for Counts One and Three was “frankly ri-
diculous,” and referenced its “personal belief” and

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No. 22-1302 9
knowledge as a district court judge. Jerry submits this re-
flected a “mind-set of un-seriousness.” Jerry relies primarily
on United States v. Robinson, 829 F.3d 878 (7th Cir. 2016), and
United States v. Figueroa, 622 F.3d 739 (7th Cir. 2010). To the
government, the “record is replete with evidence” that the re-
sentencing was a serious proceeding and that the district
court imposed a just sentence.
In Robinson, this court observed that “[w]hen a district
court makes ‘extraneous and inflammatory comments during
the sentencing hearing,’ it ‘casts doubt on the validity of the
sentence.’” 829 F.3d at 880 (quoting Figueroa, 622 F.3d at 741).
There, the district court’s focus on “urban decay” and “social
unrest” was improper in that it attributed local and national
issues to the defendant that were largely peripheral to his
crime. Id. That court also erred in relating the defendant’s
crime to events occurring in other parts of the country. Id. Fur-
ther, the district judge’s personal recollections of the neigh-
borhood in which the crime occurred could be perceived as a
personal grudge against the defendant and contributed to the
court’s decision to remand for resentencing. Id.
In Figueroa, this court likewise remanded for resentencing
where the district court engaged in “an extended discussion
of topics that [were] both outside of the record and extraneous
to any proper sentencing consideration,” including the dis-
trict court’s position on Mexico’s contribution to drug and im-
migration issues. 662 F.3d at 743. The government’s argument
was rejected that “the discussion of the Mexican drug wars
was sufficiently germane to the underlying conduct.” Id. at
744. But had these been “the only extraneous comments, then
we might give the district court the benefit of the doubt.” Id.

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10 No. 22-1302
The district court’s remarks during Jerry’s resentencing
are not like the comments in Robinson and Figueroa. Its label of
the Guidelines range of 51 to 63 months as “frankly, ridicu-
lous” as a matter of “personal belief” is permitted, as a court
may express “disagree[ment] with the sentencing philosophy
of the guidelines.” United States v. Asbury, 27 F.4th 576, 580
(7th Cir. 2022). Moreover, the district court’s statement of
“personal belief” cannot reasonably be understood to indicate
a personal grudge against Jerry as in Robinson. These com-
ments thus do not constitute procedural error.
Explanation for the Upward Variance. Although Jerry
acknowledges that sentences may exceed the Guidelines
range, he contends the district court’s explanation for the up-
ward variance was “terse” and did not “reveal[] how the par-
ticular sentence was determined.”
In Gall, the Supreme Court stated that “failing to
adequately explain the chosen sentence—including an expla-
nation for any deviation from the Guidelines range” is proce-
dural error. 552 U.S. at 51. It suggested that a district court
adequately explains a sentence or deviation when it “thor-
oughly document[s] [its] reasoning” therefor. Id. at 53. Con-
sistent with this requirement, we have stated that “[w]hen
evaluating the procedural soundness of a sentence, we do not
explore its reasonableness; that inquiry is reserved for a sub-
stantive challenge.” Morgan, 987 F.3d at 632. So, in Morgan, we
limited our discussion of procedural error to whether the rec-
ord revealed the district court’s reasons for imposing the sen-
tence. See id. at 632–33. Only in evaluating the defendant’s
substantive challenge did we assess the reasonableness of the
district court’s proffered reasons for the sentence. See id. at
633.

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No. 22-1302 11
Here, the district court explained that because the Guide-
lines range did not account for Jerry’s violent conduct and the
impact that conduct had on his victims, a sentence 16 to 27
percent above that range for all counts was appropriate. It was
“certainly not true here,” the court observed, that Hobbs Act
robbery was committed without violence, as was assumed un-
der the applicable Guidelines range. Rather, the court empha-
sized, Jerry had committed a “terrible crime” just to obtain
some cell phones and his victims were “permanently scarred”
by the experience and could not continue working at the
store. The court concluded that Jerry’s conduct was “one
heartbeat away from murder” and this “ha[d] to be reflected
in the sentence.” These statements sufficiently document the
reasons for the upward variance.
B. Substantive Reasonableness
Jerry also contends his new sentence is substantively un-
reasonable. Although he recasts some of his procedural chal-
lenges as substantive ones, see United States v. Smith, No. 22-
1447, -- F.4th --, 2022 WL 17494689, at *2 (7th Cir. Dec. 8, 2022),
we discern three distinct arguments addressing the substan-
tive reasonableness of the sentence. First, Jerry claims the dis-
trict court’s conclusion that his conduct was “one heartbeat
away from murder” is an improper justification for the up-
ward variance because it reflects the view of the government
and the district court that Bridges and Jerry I were wrongly de-
cided. Jerry suggests that to justify this variance, the district
court must have made findings specific to his risk to reoffend
or respect for the law. Second, Jerry contends the district court
described his conduct during the offense using more extreme
rhetoric than at the first sentencing. Third, he argues the

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12 No. 22-1302
district court discounted his lack of write-ups in prison and
his engagement in self-study.
Justification for the Upward Variance. Although Jerry frames
his first argument as a procedural error, his reasoning raises
a substantive challenge to the district court’s consideration of
his actual conduct and victim impact in imposing an above-
Guidelines sentence. In Gall, the Court analyzed, under an
abuse-of-discretion standard, whether the district court
properly relied on a particular factor—the defendant’s imma-
turity at the time of the offense—in selecting a sentence. See
552 U.S. at 58. It explained that the district court’s use of that
factor was reasonable, in part because “consideration of that
factor finds support in our cases.” Id. Therefore, when a de-
fendant claims that the district court’s justification for a sen-
tence was grounded in an inappropriate consideration, he
challenges the substantive reasonableness of the sentence.
It was reasonable for the district court to consider Jerry’s
actual conduct and victim impact. Both considerations are en-
compassed within “the nature and circumstances of the of-
fense” under 18 U.S.C. § 3553(a)(1). See United States v. Propst,
959 F.3d 298, 305 (7th Cir. 2020) (victim impact); United States
v. Durham, 967 F.3d 575, 580 (7th Cir. 2020) (violent conduct).
Our case law also supports their consideration in varying up-
ward from a Guidelines range reflecting the categorical ap-
proach to the classification of an offense. In United States v.
Carter, 961 F.3d 953, 954 (7th Cir. 2020), we observed that “the
classification of prior convictions under the Sentencing
Guidelines can produce abstract disputes that bear little con-
nection to the purposes of sentencing.” We therefore ex-
plained that a judge may consider reliable information about
a conviction and use its “discretion under § 3553(a) to impose

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No. 22-1302 13
a sentence that does not depend on that categorical classifica-
tion.” Id. at 959–60.
Although our observations in Carter were made about the
district court’s consideration of the factual circumstances sur-
rounding prior convictions, they readily extend to those of-
fenses that are the immediate subject of sentencing. Congress
provided that “[n]o limitation shall be placed on the infor-
mation concerning the … conduct of a person convicted of an
offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sen-
tence.” 18 U.S.C. § 3661. This broad language includes con-
duct related to both prior convictions and the conduct for
which the defendant is being sentenced. The district court
therefore did not act unreasonably in considering Jerry’s vio-
lent conduct despite the categorical classification of Hobbs
Act robbery.
Similarly, in United States v. Jones, 962 F.3d 956, 962 (7th
Cir. 2020), we acknowledged that victim impact may support
an upward variance. There, the defendant was subject to a
lower Guidelines range after it was determined that he could
no longer be designated a career offender. See id. at 959. We
stated that the “Guidelines may well fail to account for the
devastating effects [the defendant]’s crimes had on his vic-
tims,” and we observed that it was appropriate for the district
court to “so state and clarify how it uses those findings to cal-
culate” the appropriate sentence. Id. at 962. The district court
thus did not abuse its discretion in considering victim impact.
Jerry’s violent conduct and victim impact also must con-
stitute sufficiently compelling justifications to support the
degree of variance for the sentence to be substantively reason-
able. “When examining above-Guidelines sentences, we

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14 No. 22-1302
‘consider the extent of the deviation and ensure that the justi-
fication is sufficiently compelling to support the degree of var-
iance.’” United States v. Wood, 31 F.4th 593, 600 (7th Cir. 2022)
(quoting Gall, 552 U.S. at 50). The district court determined
that because the Guidelines range did not account for Jerry’s
violent conduct and victim impact, a sentence 16 to 27 percent
above that range was proper. In Wood, a district court sen-
tenced a defendant who committed wire and bankruptcy
fraud to a term of imprisonment that exceeded the top of the
Guidelines range by approximately 66 percent. 31 F.4th at 596,
600. We concluded that the inability of the Guidelines “to cap-
ture the nature of [the defendant]’s crime, its impact upon his
victims, and his dogged pursuit of the [fraudulent] scheme”
were sufficiently compelling justifications for this deviation.
Id. at 600. Here, the violent nature of Jerry’s conduct and its
impact on his victims are “factors sufficiently particularized
to the individual circumstances of the case” and provide com-
pelling justifications for a moderate upward variance. Id.
(quoting United States v. Stinefast, 724 F.3d 925, 932 (7th Cir.
2013)) (internal quotation marks omitted).
Comments at Resentencing. When the district court said
Jerry’s crimes were “one heartbeat away from murder,” to
Jerry, the court employed more extreme rhetoric to describe
his conduct at resentencing than at his initial sentencing. This
comment is a problem for Jerry because he says it formed “the
largest part of the reason for imposing a sentence above the
recommended guideline range.” He brings this as a substan-
tive challenge, so we understand him to contest the weight

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No. 22-1302 15
the district court afforded his violent conduct and victim im-
pact in choosing an above-Guidelines sentence.1
We reject this argument because the district court consist-
ently described the offense at each sentencing hearing. At the
first sentencing, the court stated of the robbery: “If I were in
that same situation, I would be, as a good religious person,
saying my final prayers because I would believe that I was
go[ing to] die at that moment.” Given Jerry’s conduct during
the offense, the court observed that the victims “might have”
in fact died that day. These statements, like the district court’s
comments at the resentencing, reflect the court’s view that the
sentence should account for the violent nature of Jerry’s con-
duct and the impact his crimes had on his victims.
Consideration of Self-Study and Lack of Write-ups. Last, Jerry
contends the district court unreasonably discounted his self-
study and lack of write-ups in prison, erroneously presuming
Jerry acted with an eye toward receiving a more favorable
sentence. This contention lacks merit. First, the government
offered this point at the resentencing about Jerry’s self-study,
not his lack of write-ups. Regardless, the district court rejected
the government's argument at the resentencing. The court ob-
served that although Jerry knew while in prison that he
would be resentenced, the court had “seen many other
1 Even if Jerry’s challenge is that the district court “select[ed] a sen-
tence based on clearly erroneous facts,” a procedural challenge, Gall, 552
U.S. at 51, that argument fails. The court adopted the factual findings in
the presentence report, which stated that Jerry brandished a gun and
threatened to “shoot the shit out of” the employees of the cellphone store.
The court did not commit procedural error in characterizing Jerry’s of-
fense as “one heartbeat away from murder.”

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16 No. 22-1302
examples where people did not act that way.” It therefore
“commend[ed]” Jerry for these actions.
III. Conclusion
Jerry’s new sentence is both procedurally and substan-
tively reasonable. The district court correctly calculated the
applicable Guidelines range, thoroughly considered the rele-
vant § 3553(a) factors, and fashioned a sentence that varied
upward to account for Jerry’s conduct during his crimes and
his impact on the victims. For these reasons, we A FFIRM .

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