Opinion
CAUSE NO. 3:20-CR-101 DRL-MGG
2021-09-22
UNITED STATES of America, Plaintiff, v. Martel SETTLES, Defendant.
Joel R. Gabrielse, Government Attorney, US Attorney's Office, South Bend, IN, for Plaintiff.
Joel R. Gabrielse, Government Attorney, US Attorney's Office, South Bend, IN, for Plaintiff.
SENTENCING MEMORANDUM
Damon R. Leichty, Judge
Just past 2:00 a.m. on April 4, 2020, Martel Settles violated a restraining order and went to his ex-girlfriend's home with a loaded handgun. Law enforcement arrived. Mr. Settles ran, tossing the handgun as he fled. He was apprehended. He pleaded guilty to a single-count indictment: unlawfully possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1).
SENTENCING GUIDELINES
The court must first calculate the guideline sentence correctly, then decide what is the right and reasonable sentence for the defendant. Nelson v. United States , 555 U.S. 350, 351, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) ; United States v. Schmidt , 930 F.3d 858, 862 (7th Cir. 2019). The court applies the 2018 sentencing guidelines. See Peugh v. United States , 569 U.S. 530, 531, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ; U.S.S.G. § 1B1.11.
There being no objections, the court adopts as its own findings ¶¶ 1-95 of the final presentence report, amended as follows based on updated information: (a) ¶ 41 to show the charges dismissed and one criminal history point removed; (b) ¶ 49 to show Mr. Settles was sentenced to 15 days of imprisonment and to add one criminal history point under U.S.S.G. § 4A1.1(c); and (c) ¶ 51 to show the charge dismissed.
Mr. Settles starts at offense level 20 because he possessed the firearm after his 2009 conviction for robbery resulting in bodily injury (a felony crime of violence). U.S.S.G. §§ 2K2.1(a)(4)(A), 4B1.2(a)(2). He accepted responsibility, decreasing his offense level to 18. U.S.S.G. § 3E1.1(a). The government declined to request further reduction, which remains within its discretion. See United States v. Davis , 714 F.3d 474, 475 (7th Cir. 2013) (per curiam ); United States v. Nurek , 578 F.3d 618, 624-25 (7th Cir. 2009) ; see, e.g., United States v. Orona, 534 F.Supp.3d 987, 989-91 (N.D. Ind. 2021).
The sentencing guidelines assess six criminal history points for certain past sentences, placing him in criminal history category III. U.S.S.G. chap. 5A. There the sentencing guidelines recommend a sentencing range of 33 to 41 months, U.S.S.G. chap. 5A, less than the statutory maximum of ten years (120 months). 18 U.S.C. §§ 922(g)(1), 924(a)(2).
DISCUSSION
The court decides the sentence under 18 U.S.C. § 3553(a) and Booker v. United States , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Turning to the statutory factors, the court must arrive at a reasonable sentence: one sufficient but not greater than necessary to satisfy the statute's purposes. 18 U.S.C. § 3553(a).
As calculated, the sentencing guidelines ordinarily pose the best hope, on a national basis, for avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. § 3553(a)(6) ; United States v. Boscarino , 437 F.3d 634, 637 (7th Cir. 2006). For a crime frequently charged in federal court, including in this district, the guidelines tend to ensure more uniformity. Still, as an initial benchmark, the guideline range isn't presumed reasonable, see Gall v. United States , 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; Rita v. United States , 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), and this case calls for an individualized reassessment for many reasons, see United States v. McIntyre , 531 F.3d 481, 483-84 (7th Cir. 2008) ; United States v. Orozco-Vasquez , 469 F.3d 1101, 1109 (7th Cir. 2006).
Mr. Settles’ conduct was more serious than mere felonious weapon possession. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A), (a)(6). He didn't just unlawfully have an unloaded firearm in the safety of his home. He was arrested after arriving at his ex-girlfriend's home, where a child was sleeping, in violation of a no contact order, in the middle of the night, with a loaded handgun, and with a live round in the chamber. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A), (a)(5) ; see also U.S.S.G. § 5K2.6 ("The extent of the increase ordinarily should depend on the dangerousness of the weapon, the manner in which it was used, and the extent to which its use endangered others."). He banged on the door and demanded to be let into the house, angry that the ex-girlfriend had two friends over (one of whom was male). The ex-girlfriend saw the firearm and pleaded for him to leave, but Mr. Settles’ anger intensified, and he started to kick at the door. He did so hard enough she later had to replace the door. He then damaged her male friend's car. When an officer arrived, Mr. Settles ran and dropped the handgun during the pursuit. The offense's seriousness hasn't been adequately captured by the guideline range. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A).
This offense isn't his first threatening action against an ex-romantic partner. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(C). Mr. Settles has a history of violence—at times emboldened by firearms. Four orders of protection have been entered against him by two ex-romantic partners, two of which remain active. He has continuously violated these orders; even after being charged in state court for this offense conduct, he sent a threatening text message stating "the police only temporary." See 18 U.S.C. §§ 3553(a)(2)(B), (a)(2)(C). In 2009, he robbed and assaulted a woman (groped her breast and pubic area) while another man held a gun. In 2018, he spit on his former girlfriend and threatened to bash her head in. In 2019, he slapped his girlfriend, spit on her, and threw a soda on her and her child, later texting "I know you deserve that pop bath you whore." This time he came armed with a loaded firearm after failing to attend his state sentencing. Only a locked door and timely law enforcement subdued this night's angry encounter and likely violence. He says he served about five years for his prior felony robbery. If that sentence and four protective orders won't redirect his conduct, this sentence must. See 18 U.S.C. §§ 3553(a)(2)(B), (a)(2)(C). The law shouldn't walk backwards against a growing disrespect for the law, a need for greater deterrence, or a need for more public protection, including for women and children.
Mr. Settles’ lack of respect for the law extends beyond his romantic partners. He has a history of not complying with court orders as a juvenile, committing new offenses while on parole, failing to show for a sentencing hearing, and fleeing law enforcement officers. See 18 U.S.C. § 3553(a)(1). Twice he has been found guilty of fleeing or resisting law enforcement. This time he did so with a firearm. For the law's interest in protecting officers, protecting citizens, and reducing officer-involved shootings, this type of conduct exacerbates, not reduces, the risks. See 18 U.S.C. § 3553(a)(2)(B). His flight with a firearm posed a real risk that night that hasn't been addressed by the guideline range.
Mr. Settles believes he has been shown little grace by the criminal justice system. He has historically received alternative means of correction, including a private childcare facility, probation, fines, suspended sentences, no contact orders, and rather short sentences in prison in times. Only one prison sentence was sizeable, and that was so in part because he violated parole. He has chosen to work past these many opportunities at reform. Despite many rehabilitative efforts, he has persisted in crime based on his choice to do whatever he wants, notwithstanding his legal obligations. Even his conduct in prison for his robbery offense was combative, where he accrued 25 violations. He has active warrants. He has committed more crime mere days or months after being released or while still under supervision. His history in total and the seriousness of this offense in light of that history likewise remain unaccounted by the guideline range, leaving the risk of recidivism generally and specifically true concerns. See 18 U.S.C. 3553(a)(1) ; see also United States Sent. Comm'n, Recidivism Among Federal Firearms Offenders 17 (2019) ("firearms offenders recidivated at a higher rate than non-firearms offenders by a margin of over 21 percentage points").
A lifelong resident of South Bend, Mr. Settles was raised by his mother and her long-term partner, who acted as a father figure to Mr. Settles. See 18 U.S.C. § 3553(a)(1). He remains close to his siblings, grandparents, and mother. Though his childhood wasn't always easy, he never suffered from or witnessed any abuse and steered clear of gang involvement. He has family support today. He has shown glimmers of promise at times. He showed remarkable talent as a very young boy. He also was an athlete; he struggled in the classroom. At 31 years old, and despite spending a fair chunk in prison, Mr. Settles has five children, ranging in age from four to thirteen. Although his child support payments for at least two of his children are in arrears, he has still managed to use marijuana daily until his arrest. His employment record is sporadic, mainly consisting of short stints at manufacturing companies and as an informal laborer. He has no degree. He enrolled in Pennway Alternative High School just before his arrest. His glimmers haven't yet translated into a true track record.
The court has considered Mr. Settles’ allocution before determining his sentence. See , e.g. , United States v. Griffin , 521 F.3d 727 (7th Cir. 2008). He apologized to his ex-girlfriend, children, family, and to his community. He acknowledged his actions have caused him to miss his children's and family's birthdays, graduations, and other important events. He hopes to continue his newfound talent of writing scripts. Like his young daughter writes, "I hope he will make better choices this time around."
Mr. Settles seeks a sentence of 33 months. The government requests the statutory maximum of 120 months. The statutory maximum, a sentence nearly three times greater than the maximum sentence recommended by the guidelines, though perhaps yet reasonable, doesn't find support in the rule of parsimony—that the court must impose the lowest reasonable sentence. Such a sentence would enshrine Mr. Settles’ actions as the very worst this offense contemplates and create unwarranted sentencing disparities, not just nationally but for those whom this court has sentenced. See 18 U.S.C. § 3553(a)(6). The court has seen worse. See United States v. Jones , 962 F.3d 956, 962 (7th Cir. 2020) ("courts should reserve the statutory maximum for ‘unusual cases,’ " else they "leave little room for the marginal deterrence of persons whose additional deeds are more serious") (brackets omitted).
That said, the guideline range is strikingly low. It overlooks his flight with a firearm and the attendant risks. It ignores his total disregard for the law, multiple protective orders, and the rights of women and other citizens—a history that calls for greater public protection and a robust incapacitant. It omits the true risks of recidivism on this record and a deterrent that demonstrates to Mr. Settles that the law will indeed respond to his return to crime and continued disrespect for the law. It doesn't capture the true seriousness of this offense. It doesn't capture that his criminal history category underrepresents his criminal history, not least his resisting charge in 2019 for which he was found guilty and awaited sentencing only recently to have it dismissed—particularly given his troubling history in this respect and in his interaction with law enforcement on this very night.
As a metrical check-and-balance to this analysis of the § 3553(a) factors, see Jones , 962 F.3d at 962, the court has considered policy guidance from the guidelines, including U.S.S.G. §§ 3C1.2 and 5K2.6, see 18 U.S.C. § 3553(a)(5), as well as the unaccounted for features within the guideline rubric. His flight didn't rise to the degree of a two-level enhancement but merits the equivalent of one level. See U.S.S.G. § 3C1.2. His violent past, violation of protective orders, and disregard for the law and the rights of women and children approximate to two levels, particularly when he continues to believe he may act with impunity. The true seriousness of this offense and the nature of his conduct with the firearm, left unaddressed by the guideline range, justifies conservatively an additional level. His risk of recidivism and the need for deterrence merits the same. He more aptly fits within category IV, which he reaches if merely one point is assigned to his resisting law enforcement guilty verdict.
This crosscheck to § 3553(a) supports a sentence of 87 months as sufficient but not greater than necessary to satisfy federal sentencing goals. Review of all factors set forth in 18 U.S.C. § 3553(a) persuades the court that, given the need for the sentence to reflect the seriousness of the offense, to provide just punishment, to promote respect for the law, to deter future such crimes, and to protect the public, and given the range recommended by the guidelines and this defendant's history, such a sentence is appropriate. After announcing the proposed sentence, Mr. Settles proceeded in an articulate but, in fairness, angry diatribe that came perilously close to caving a reduction for acceptance of responsibility, but today merely underscores the reasonableness of this sentence.
The court may impose a supervised release term of not more than 3 years. 18 U.S.C. § 3583(b)(2) ; see also U.S.S.G. § 5D1.2(a)(2) (recommending 1-3 years). Mr. Settles has often not complied with conditions of release or court orders. A term of 3 years is appropriate in this case. The court is of the view that steady supervision after his sentence will be required.
Mr. Settles can't pay the fines recommended by the guidelines even if afforded the most generous of installment payment schedules, so the court imposes no fine. A special assessment of $100.00 is mandatory. 18 U.S.C. § 3013(a)(2)(A).
SENTENCE
Accordingly, it is the court's judgment that the defendant, Martel Settles, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a total term of 87 months.
Under 18 U.S.C. § 3585, the court leaves it to the Bureau of Prisons to determine the appropriate amount of time served to be credited toward the defendant's sentence. The court recommends that the Bureau of Prisons designate as the place of the defendant's confinement, consistent with his security classification as determined by the Bureau of Prisons, an institution where he may be located as close to his family in Northern Indiana.
Upon release from prison, the defendant will be placed on supervised release for a term of 3 years. While on supervised release, he must comply with the terms of supervision set forth in ¶¶ 96-109 of the final presentence report, which paragraphs the court incorporates as part of this sentence having made an independent judgment that they should be imposed under 18 U.S.C. § 3583(d). The defendant expressly waived the reading in open court of these supervisory conditions.
The court imposes no fine. The defendant must pay to the United States a special assessment of $100.00, which is due immediately.
A separate final order of forfeiture will be entered and included in the judgment.
SO ORDERED.