When Rhyan Littlejohn-Conner appeared for sentencing before U.S. District Court Senior Judge R. Brooke Jackson in June of last year, he faced a range of 84 to 105 months in prison for the crime of possession of ammunition by a convicted felon.

Littlejohn-Conner’s attorney asked the judge for a lesser sentence, saying his client’s use of a firearm against a pair of robbers was to defend himself and his family, not to intentionally harm anyone. Only a few minutes into the defense’s request, Jackson interrupted with a question.

“Are you familiar with the Colbert case?”

What ensued was the subject of Littlejohn-Conner’s appeal of his sentence to the federal appellate court based in Denver. Last week, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit decided, 2-1, that Jackson had not infringed on Littlejohn-Conner’s rights by comparing the severity of Littlejohn-Conner’s crime to a similar case he handled a few months prior, despite repeatedly raising the comparison during Littlejohn-Conner’s sentencing hearing. 

Federal sentencing guidelines require judges to avoid creating disparities between similarly-situated defendants by taking stock of sentence lengths nationwide, not just in one particular court or from one particular judge. Littlejohn-Conner’s appeal claimed Jackson’s sentencing decision focused inappropriately on the judge’s specific sentencing that same year of another man, Herman Colbert, to 120 months in prison. Colbert, like Littlejohn-Conner, was prohibited from possessing a firearm but shot a man anyway.

The appellate panel’s majority disagreed Jackson’s sentencing was in error.

“(W)hile the district court discussed the Colbert case at some length, it does not appear from the record that the Colbert case significantly influenced the district court’s ultimate selection of a sentence,” wrote Judge Carolyn B. McHugh for herself and Senior Judge Mary Beck Briscoe in the June 30 order.

Judge Robert E. Bacharach wrote in dissent to endorse a resentencing of Littlejohn-Conner. In his interpretation of the trial judge’s comments, Jackson believed he had to avoid disparities not only between Littlejohn-Conner’s sentence compared to similar defendants nationwide, but Littlejohn-Conner’s sentence compared to similar defendants who had appeared before Jackson specifically. Jackson’s belief, said Bacharach, was incorrect.

“Given the comparison to Mr. Colbert’s sentence, the court might easily have imposed a shorter sentence for Mr. Littlejohn. Even if the error had extended the sentence only a month or two, the difference would have prejudiced Mr. Littlejohn by extending his incarceration,” Bacharach wrote.

The underlying case began after Littlejohn-Conner ran outside his Denver apartment in September 2020 to find two men burglarizing his wife’s car. He believed he saw one of them reach inside their getaway vehicle for something, prompting Littlejohn-Conner to fire multiple shots at them as they fled. One of the men later went to the hospital for a non-life threatening bullet wound to the head.

A stray bullet also entered a neighbor’s bathroom and shattered her mirror.

Littlejohn-Conner pleaded guilty to one federal count of possession of ammunition by a prohibited person. The prohibition stemmed from his felony convictions for robbery years earlier.

The government asked Jackson to impose a sentence of 105 months, the top of the recommended range. Littlejohn-Conner’s criminal history included beating up his wife in 2019 and shoving her through a glass table, causing her to lose consciousness. He also failed or did not complete multiple drug tests, repeatedly violated his probationary conditions and had warrants out for his arrest at the time he shot at the burglars.

On the other hand, Jackson heard testimony from three of Littlejohn-Conner’s sisters and his wife about Littlejohn-Conner’s commitment to turning his life around and the harm to his children from their father’s extended absence. They said the family was dedicated to helping Littlejohn-Conner rehabilitate himself, and the prosecutor even admitted the level of support was something “we don’t often hear in federal court.”

Jackson acknowledged the family’s plea for leniency, but concluded he could not impose a below-guidelines sentence on Littlejohn-Conner “because he’s got a beautiful family that need his support. I can’t do better for him than I do for someone else that commits the very same crime that doesn’t have the same family issues.”

Jackson then referenced the case of Herman Colbert, who he sentenced to 10 years in prison four months prior for shooting and killing a man. Colbert had pleaded guilty to possession of a firearm by a prior offender.

Calling it the “very same exact crime,” Jackson said Littlejohn-Conner’s case was “not that far from” Colbert’s.

“One thing I’m supposed to do as a judge is to avoid unwarranted sentencing disparities, and so I am comparing this situation to that situation as one of the factors I am thinking about in this case,” Jackson said.

After receiving his 84-month sentence, Littlejohn-Conner appealed to the 10th Circuit, making two arguments. First, federal sentencing guidelines call for trial judges to evaluate the “history and characteristics of the defendant” when making their decisions. Jackson, in saying that he “can’t do better” for Littlejohn-Conner, allegedly failed to consider the hardship on Littlejohn-Conner’s family when weighing his history and characteristics.

The government disputed that interpretation, arguing Jackson had never said he was disregarding entirely the effects of a long sentence on Littlejohn-Conner’s family. Instead, the judge did not believe the family impacts outweighed the need for a more severe sentence.

The 10th Circuit’s panel rejected the defense’s contention, with McHugh writing that Littlejohn-Conner’s criminal history belied his attempts to “paint himself as a family man.” However, the appellate judges split on Littlejohn-Conner’s second argument: that Jackson mistakenly measured Littlejohn-Conner’s case against Colbert’s, rather than against cases nationwide.

The nationwide comparison built into the sentencing guidelines “is to ensure that a defendant’s sentence doesn’t depend on the accident of which judge he draws,” public defender Josh Lee wrote to the 10th Circuit. “Following the district court’s interpretation, a judge who has been atypically harsh in the past should strive to be equally harsh going forward. And if a judge has been comparatively lenient in the past, that judge should strive to be equally lenient going forward.”

During oral arguments to the panel earlier this year, the government said it was “abundantly clear” Jackson was not going to choose a sentence below the recommended range, regardless of his consideration of the Colbert case. McHugh endorsed that reading of the transcript.

“It doesn’t appear it was really tied much to that sentence,” she said. But Bacharach pushed back on that notion.

“Do you question that the judge said expressly that he had to consider Colbert?” he asked Assistant U.S. Attorney Kyle Brenton.

“I don’t question that,” conceded Brenton.

In the majority’s opinion, McHugh did not conclude Jackson misunderstood the sentencing guidelines by comparing Littlejohn-Conner’s case to a previous case he handled. Even if Jackson did, she added, the effect was “negligible,” given that Littlejohn-Conner arguably deserved a sentence “in excess of the bottom of the Guideline range.”

Bacharach, in his dissent, explained there was no way to know whether Jackson would have imposed a lesser sentence without relying on the Colbert case, but it was clear Jackson had compared Littlejohn-Conner and Colbert to each other in what Bacharach deemed a “mistaken view” of the sentencing guidelines. Furthermore, Jackson had apparently done the same thing during Colbert’s sentencing, remarking at the hearing that he had “just recently” sentenced a defendant for a similar crime and wanted to avoid disparities.

“So the district court’s mistaken belief that it had to consider its own past sentences has now contributed to the sentences of two defendants,” Bacharach warned. “That misguided focus on the district court’s own past sentences could widen national disparities.”

The case is United States v. Littlejohn-Conner.