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No. 14-1330 UNITED STATES COURT of APPEALS for the SEVENTH CIRCUIT Plaintiff-Appellant, V. Defendant-Appellee

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No. 14-1330 UNITED STATES COURT of APPEALS for the SEVENTH CIRCUIT Plaintiff-Appellant, V. Defendant-Appellee Case: 14-1330 Document: 28 Filed: 07/09/2014 Pages: 70 No. 14-1330 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ________________ UNITED STATES OF AMERICA, Plaintiff-Appellant, v. H. TY WARNER, Defendant-Appellee. ________________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division The Honorable Charles P. Kocoras No. 1:13-cr-00731-1 ________________ BRIEF FOR DEFENDANT-APPELLEE ________________ GREGORY J. SCANDAGLIA PAUL D. CLEMENT MICHAEL S. SHAPIRO Counsel of Record SCANDAGLIA & RYAN ERIN E. MURPHY 55 East Monroe Street BANCROFT PLLC Suite 3440 1919 M Street NW Chicago, IL 60603 Suite 470 (313) 580-2020 Washington, DC 20036 (202) 234-0090 MARK E. MATTHEWS CAPLIN & DRYSDALE CHTD. [email protected] One Thomas Circle NW MICHAEL J. GARCIA Suite 1100 KIRKLAND & ELLIS, LLP Washington, DC 20005 601 Lexington Avenue (202) 862-5000 New York, NY 10022 (212) 446-4800 Counsel for Defendant-Appellee July 9, 2014 Case: 14-1330 Document: 28 Filed: 07/09/2014 Pages: 70 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT The undersigned counsel for Defendants-Appellee furnishes the following statement in compliance with Circuit Rule 26.1: (1) The full name of every party that the attorney represents in the case: H. Ty Warner (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Partners and associates of the law firms of Caplin & Drysdale, Scandaglia & Ryan, Kirkland & Ellis LLP, and Bancroft PLLC, have appeared for Defendants-Appellees in the District Court and appear for them in this Court. (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any: N/A ii) List any publicly held company that owns 10% or more of the party’s or amicus’ stock: N/A BANCROFT PLLC s/Paul D. Clement Paul D. Clement Counsel for Defendants-Appellees July 9, 2014 Case: 14-1330 Document: 28 Filed: 07/09/2014 Pages: 70 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT The undersigned counsel for Defendants-Appellee furnishes the following statement in compliance with Circuit Rule 26.1: (1) The full name of every party that the attorney represents in the case: H. Ty Warner (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Partners and associates of the law firms of Caplin & Drysdale, Scandaglia & Ryan, Kirkland & Ellis LLP, and Bancroft PLLC, have appeared for Defendants-Appellees in the District Court and appear for them in this Court. (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any: N/A ii) List any publicly held company that owns 10% or more of the party’s or amicus’ stock: N/A BANCROFT PLLC s/Erin E. Murphy Erin E. Murphy Counsel for Defendants-Appellees July 9, 2014 ii Case: 14-1330 Document: 28 Filed: 07/09/2014 Pages: 70 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT The undersigned counsel for Defendants-Appellee furnishes the following statement in compliance with Circuit Rule 26.1: (1) The full name of every party that the attorney represents in the case: H. Ty Warner (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Partners and associates of the law firms of Caplin & Drysdale, Scandaglia & Ryan, Kirkland & Ellis LLP, and Bancroft PLLC, have appeared for Defendants-Appellees in the District Court and appear for them in this Court. (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any: N/A ii) List any publicly held company that owns 10% or more of the party’s or amicus’ stock: N/A SCANDAGLIA & RYAN s/Gregory J. Scandaglia Gregory J. Scandaglia Counsel for Defendants-Appellees July 9, 2014 iii Case: 14-1330 Document: 28 Filed: 07/09/2014 Pages: 70 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT The undersigned counsel for Defendants-Appellee furnishes the following statement in compliance with Circuit Rule 26.1: (1) The full name of every party that the attorney represents in the case: H. Ty Warner (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Partners and associates of the law firms of Caplin & Drysdale, Scandaglia & Ryan, Kirkland & Ellis LLP, and Bancroft PLLC, have appeared for Defendants-Appellees in the District Court and appear for them in this Court. (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any: N/A ii) List any publicly held company that owns 10% or more of the party’s or amicus’ stock: N/A SCANDAGLIA & RYAN s/Michael S. Shapiro Michael S. Shapiro Counsel for Defendants-Appellees July 9, 2014 iv Case: 14-1330 Document: 28 Filed: 07/09/2014 Pages: 70 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT The undersigned counsel for Defendants-Appellee furnishes the following statement in compliance with Circuit Rule 26.1: (1) The full name of every party that the attorney represents in the case: H. Ty Warner (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Partners and associates of the law firms of Caplin & Drysdale, Scandaglia & Ryan, Kirkland & Ellis LLP, and Bancroft PLLC, have appeared for Defendants-Appellees in the District Court and appear for them in this Court. (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any: N/A ii) List any publicly held company that owns 10% or more of the party’s or amicus’ stock: N/A CAPLIN & DRYSDALE CHTD. s/Mark E. Matthews Mark E. Matthews Counsel for Defendants-Appellees July 9, 2014 v Case: 14-1330 Document: 28 Filed: 07/09/2014 Pages: 70 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT The undersigned counsel for Defendants-Appellee furnishes the following statement in compliance with Circuit Rule 26.1: (1) The full name of every party that the attorney represents in the case: H. Ty Warner (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Partners and associates of the law firms of Caplin & Drysdale, Scandaglia & Ryan, Kirkland & Ellis LLP, and Bancroft PLLC, have appeared for Defendants-Appellees in the District Court and appear for them in this Court. (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any: N/A ii) List any publicly held company that owns 10% or more of the party’s or amicus’ stock: N/A KIRKLAND & ELLIS, LLP s/Michael J. Garcia Michael J. Garcia Counsel for Defendants-Appellees July 9, 2014 vi Case: 14-1330 Document: 28 Filed: 07/09/2014 Pages: 70 TABLE OF CONTENTS CIRCUIT RULE 26.1 DISCLOSURE STATEMENT ......................................... i TABLE OF AUTHORITIES ............................................................................. viii JURISDICTIONAL STATEMENT ..................................................................... 1 STATEMENT OF THE ISSUE ........................................................................... 1 STATEMENT OF THE CASE ............................................................................ 1 A. Mr. Warner’s Unique History and Characteristics ........................ 3 B. The Underlying Offense .................................................................. 9 C. Sentencing Proceedings ................................................................. 13 SUMMARY OF ARGUMENT ........................................................................... 21 ARGUMENT ...................................................................................................... 25 I. District Courts Possess Extremely Broad Sentencing Discretion, And The Sentences They Impose May Be Held Substantively Unreasonable Only In The Narrowest Of Circumstances .......................................................................................... 25 II. Mr. Warner’s Sentence Is Substantively Reasonable ............................ 30 A. The District Court Expressly and Appropriately Considered the Relevant Sentencing Factors .............................. 30 B. The District Court Neither Considered Impermissible Factors Nor Placed Impermissible Weight on Any Factors It Considered .................................................................................. 34 C. Mr. Warner’s Sentence Is Consistent with Analogous Cases and Does Not Cause Unwarranted Sentencing Disparities ...................................................................................... 48 CONCLUSION ................................................................................................... 57 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE vii Case: 14-1330 Document: 28 Filed: 07/09/2014 Pages: 70 TABLE OF AUTHORITIES Cases Gall v. United States, 552 U.S. 38 (2007) .................................................. passim Green v.
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