May 7, 2018 – Grover Ferguson was age 17 when he shot a Milwaukee woman three times, once in the face, during a 2015 carjacking. Recently, a federal appeals court upheld Ferguson’s 35-year prison sentence, which greatly exceeded federal guidelines.

The victim lived, but sustained permanent injuries, including blindness in one eye and irreparable facial nerve damage. Ferguson entered into a nonbinding plea agreement, pleading guilty to federal charges of vehicular robbery by force and discharging a firearm during a crime of violence. The government recommended 20 years in prison.

But the U.S. District Court for the Eastern District of Wisconsin, Judge Rudolph Randa, sentenced Ferguson to 50 years. The appeals court vacated Randa’s sentence because he did not explain the serious departure from the guidelines range. The crimes to which Ferguson pled guilty carried a guidelines range of 16½ to 18 years in prison.

On remand, Judge William Griesbach imposed a 35-year sentence. Ferguson appealed again, arguing the judge did not properly consider his age in imposing the sentence and did not properly consider U.S. Supreme Court precedent regarding juvenile sentences.

But in U.S. v. Ferguson, No. 16-3979 (May 2, 2018), a three-judge panel for the U.S. Court of Appeals upheld the sentence, concluding the judge properly weighed all factors in formulating the sentence, and did not commit error in departing from the guidelines.

“[Judge Griesbach] reasonably concluded that the mitigating factor of youth was outweighed by the nature of the offense, the impact on the victim, Ferguson’s long and growing criminal history, his misdeeds while in custody, and his evident lack of remorse,” wrote Judge Daniel Manion, noting Ferguson winked at the victim in court.

Ferguson stole a handgun from his mother and scoped a gas station to steal a car while high on drugs and alcohol. It was dark when Ferguson came upon the victim.

He hid behind a tree while she walked to her car and opened it, then pointed his gun at her. Ferguson told the woman to hand over the keys. The victim said she placed the keys on the passenger seat. But Ferguson still proceeded to shoot her.

Then he stole her car and the victim crawled to the curb to avoid being run over. The victim’s niece and the niece’s daughter witnessed all this. The next day, police caught up to Ferguson and arrested him after a high speed chase. He admitted to his crimes.

At resentencing, Judge Griesbach said the sentencing guidelines underrepresented the seriousness of the offense and reviewed the guidelines for attempted murder, considered the impact on the victim, and discussed the arguments for mitigation.

That is, the judge acknowledged that youth can be a mitigating factor and reviewed U.S. Supreme Court precedent on juvenile sentencing, but found no bar to the sentence.

“In this case, the sentencing judge did not, as Ferguson insists, impermissibly ignore or misapprehend the Supreme Court’s ‘juveniles are different’ jurisprudence or fail to explain how youth factored into his sentencing decision,” Judge Manion wrote.

The appeals panel also concluded that Judge Griesbach, the sentencing judge, did not commit error in drawing from the guidelines for attempted murder.

“[N]othing stopped the judge from consulting a different, but relevant, provision of the guidelines in trying to come up with an appropriate sentence,” Judge Manion wrote. “The analogy made the judge’s reasoning clearer and more concrete.”