United States of America v. Mitchell Timm

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 19, 2014
Decided December 24, 2014
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐2108
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MITCHELL TIMM,
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 13‐CR‐236‐JPS
J.P. Stadtmueller,
Judge.
O R D E R
Mitchell Timm received a below‐guidelines sentence for armed bank robbery
and brandishing a firearm during that offense. Timm appeals, arguing that the district
court did not consider his primary contention at sentencing that the criminal‐history
score was excessive because of his mental‐health issues and age at the time he
committed prior crimes. We conclude that Timm did not waive his complaint but that
the court sufficiently considered his argument, and affirm the sentence.
In November 2012 Timm and his stepbrother robbed a bank in Wauwatosa,
Wisconsin; both men were armed. They fled the bank in a stolen car, which they then
set on fire. Timm was charged with armed bank robbery, see 18 U.S.C. § 2113(a),
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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brandishing a firearm in furtherance of that crime, see id. § 924(c)(1)(A)(ii), and
possessing a stolen vehicle, see id. § 2315. He pleaded guilty to the first two charges, and
the government agreed to dismiss the third.
A probation officer calculated a guidelines sentencing range of 84 to 105 months
for the armed robbery, based on an offense level of 22 and criminal‐history category VI.
Timm faced a statutory‐minimum consecutive sentence of 84 months under
§ 924(c)(1)(A)(ii) because he brandished his gun during the robbery.
In his report the probation officer detailed Timm’s “disturbing childhood” and
mental‐health history. The PSR revealed that when Timm was 3‐years‐old, his
stepmother physically abused him. That was followed by commitment in psychiatric
facilities from ages 5 to 12. Before he turned 7, Timm had been diagnosed with bipolar
disorder, schizophrenia, and ADHD; at age 10 he was diagnosed with depressive and
anxiety disorders, and at age 11 he tried to commit suicide by jumping from the hospital
roof. From ages 12 to 15 Timm lived with foster families, but was removed from one
home when the father physically abused him. He returned to his mother’s house, but
there too was abused; twice he was sent to juvenile detention for altercations with his
stepfather after witnessing his stepfather abuse his mother. At age 15 Timm returned to
live with his father, who had a history of crime and drug abuse. Over the next few years
Timm incurred a string of convictions and arrests, mostly for misdemeanors like
shooting paintballs at cars or breaking windows, and as a result he was incarcerated in
Wisconsin from the ages of 17 to 21. Timm took medications for his psychiatric
disorders but stopped in 2012, when he was 22, because he felt they were too expensive.
Timm submitted a sentencing memorandum urging the court to sentence him to
one day for the armed robbery and seven years (the statutory minimum) for
brandishing a firearm. He argued that his high criminal‐history score was overstated
because he committed most of the relevant offenses five years earlier when he was 17,
and because he had suffered from “a lifetime” of mental‐health problems. Because of
his youth at the time he committed the prior crimes, he said, the criminal‐history score
did not reflect accurately his likelihood of recidivating. He stated that his mental‐health
history was “of equal significance,” but did not assert that his mental‐health problems
caused him to commit the earlier offenses or the armed robbery.
At sentencing Timm’s lawyer repeated these arguments. He stressed that Timm
committed the “juvenile type activity” during a 6 to 12 month “crime spree” when he
was young and impulsive. (His lawyer omits that Timm’s crime spree necessarily—but

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perhaps not voluntarily‐‐stopped at age 17 because he was incarcerated for the next four
years.) Counsel argued briefly about Timm’s mental health, categorizing him as a
“troubled mental health patient” with “some pretty serious issues.” Timm’s father also
addressed the court and explained that when Timm took medication, he was “fine” and
asked the court to order Timm to participate in psychiatric treatment after his release.
The district court adopted the findings of the PSR and imposed a
below‐guidelines sentence. The judge explained that it had been a long time since he
had seen a 23‐year‐old with such a high criminal‐history score and even more arrests,
which the judge described as a reflection of the unmitigated fact that Timm had
“absolutely no respect” for the law. After considering the need to deter Timm from
criminal behavior and to protect the public, the court suggested that Timm’s “barebones
conduct” actually warranted a sentence of “something like 15 years.” The court
concluded, however, that an “appropriate, fair, just and reasonable sentence . . . after
considering all of the relevant conduct, [and] the relevant sentencing factors” was 84
months for brandishing a firearm and 30 months for the armed robbery—at least 54
months below the guidelines range. As a condition of supervised release, the court
ordered Timm to participate in a mental health program, undergo psychiatric
evaluations, and take all prescribed medications.
Timm appeals his sentence, arguing that the district court erred by not
addressing his principal argument that his mental health and youth mitigated his prior
criminal offenses. The government insists that Timm has waived his procedural
objection because he did not ask the district judge for further explanation of the
sentence, despite his opportunity to do so. It’s true that a defendant waives a challenge
to the district court’s consideration of a mitigating argument if, when the court asks, he
responds that he is satisfied that the court addressed his primary arguments. United
States v. Garcia‐Segura, 717 F.3d 566, 569 (7th Cir. 2013); United States v. Donelli, 747 F.3d
936, 940–41 (7th Cir. 2014). But Timm’s response to the court’s catchall question at the
end of sentencing does not constitute a waiver. In Garcia‐Segura we encouraged
sentencing courts to ask defense counsel “after imposing [the] sentence but before
advising the defendant of his right to appeal” if the lawyer was satisfied with the
court’s explanation of the sentence. Id. at 569 (emphasis added). But at Timm’s
sentencing the judge asked the lawyers only, “Are there any additional matters that we
need address?” at the very end of the sentencing hearing after he had imposed the
sentence and conditions of supervised release and explained Timm’s appellate rights.
We agree with Timm that a natural understanding of the judge’s question could be that

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he was inquiring about whether there were matters other than sentencing to
address—“such as B.O.P placement or drug treatment.” The judge’s question does not
seem to be asking whether any mitigation arguments have been overlooked or
inadequately addressed. Timm’s lawyer’s response—he requested a specific prison
placement—did not waive Timm’s right to challenge his sentence.
Turning to the merits of this appeal, Timm contends that the district court didn’t
sufficiently respond to his arguments about the effects of his age and mental health on
his criminal‐history score. He now presents as two distinct arguments what was
essentially a single argument in the district court—that Timm’s criminal‐history score
was overstated. A sentencing court must evaluate the factors in 18 U.S.C. § 3553(a), and
sufficiently explain a sentence to satisfy a reviewing court that it has considered the
parties’ arguments and exercised discretion. See United States v. Davis, 764 F.3d 690, 694
(7th Cir. 2014); United States v. Spiller, 732 F.3d 767, 769 (7th Cir. 2013). While the
sentencing court must address a defendant’s potentially meritorious principal
mitigating arguments, less explanation is required when the sentence is within or below
the guidelines range. Davis, 764 F.3d at 694; United States v. Curby, 595 F.3d 794, 796–97
(7th Cir. 2010). This court will affirm a sentence even where the district court considers
the arguments implicitly and imprecisely. See United States v. Carrillo‐Esparza, 590 F.3d
538, 540 (7th Cir. 2010) (finding no error where district court did not explicitly mention
mitigating argument but implicitly considered and rejected it); United States v.
Diekemper, 604 F.3d 345, 355 (7th Cir. 2010) (same); United States v. Poetz, 582 F.3d 835,
839 (7th Cir. 2009) (same).
The record demonstrates that the sentencing judge considered Timm’s principal
mitigating argument as it was presented at sentencing: His criminal‐history score was
overstated because of his youth and mental health at the time he committed prior crimes.
The judge explicitly considered Timm’s youth aggravating; he stated that he had not
recently encountered a 23‐year‐old with 14 criminal‐history points, and remarked that
those points didn’t “begin to address” all of Timm’s other run‐ins with the law. In light
of his criminal history at that age, the judge concluded that Timm had no respect for the
law and had to be deterred from further criminal activity.
The totality of the record also makes clear that the court considered Timm’s
mental‐health issues as well. The court adopted the detailed findings in the PSR and
listened to Timm’s lawyer and father discuss his mental‐health history, but concluded
that Timm’s lack of respect for the law was “unmitigated.” The court dismissed as
“extreme” his request for a sentence of seven years and one day, and expressly ordered

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Timm to undergo mental‐health treatment after his release. See United States v. Paige, 611
F.3d 397–398 (7th Cir. 2010) (finding no procedural error where judge ordered
mental‐health treatment after release, but didn’t “directly state” how mental‐health
problems factored into sentence). Moreover, in light of the court’s view that Timm’s
“barebones conduct” warranted a sentence close to 15 years, there can be no explanation
for the actual 30‐month sentence other than the court’s consideration of Timm’s mental
health.
Timm compares his sentencing argument and the district court’s explanation to
that in United States v. Cunningham, 429 F.3d 673, 678–79 (7th Cir. 2005), where the district
judge was silent about a non‐frivolous mitigating argument and, unlike here, where
there was no other indication that the district judge considered the defendant’s
potentially meritorious argument. But Timm overlooks another significant distinction.
In Cunningham the lawyer submitted “extensive documentation” of Cunningham’s
psychiatric history to support the argument that his psychiatric problems made him
more susceptible to commit the crime for which he was being sentenced, and therefore
less culpable for that conduct. 429 F.3d at 678–79. In contrast Timm’s lawyer submitted
no such documentation, nor did he argue that Timm’s mental‐health issues had any
effect on his culpability for the armed robbery. Instead he asserted only that his criminal
past should be discounted.
Finally we note that by appealing Timm bore a risk of receiving a higher sentence
if the case were remanded. Mental illness sometimes is considered an aggravating rather
than mitigating factor. See e.g., Donelli, 747 F.3d at 940. We don’t know the specifics of
Timm’s medical treatment, but according to the PSR he committed the prior offenses
while taking medication (although his father said he had no problems while medicated).
He discontinued medication in 2012, the same year he committed the armed robbery. It’s
possible that with further consideration the district court might reasonably conclude that
Timm’s mental illness actually weighs in favor of a longer sentence in order to protect
the public from the dangerous behaviors which result from his uncontrolled conduct. He
received a bargain when the court imposed a sentence 54 months below the guidelines
range.
The district judge sufficiently considered Timm’s argument at sentencing. The
court explicitly found Timm’s age aggravating rather than mitigating, and it is apparent
from the transcript of the sentencing, the below‐guidelines sentence, and conditions of
supervised release, that the judge considered Timm’s mental health as well.
Accordingly, we AFFIRM the sentence.

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