YOUNGSTOWN, Ohio (WKBN) — When U.S. Judge John R. Adams last October went well above sentencing guidelines to sentence a man to the maximum 10-year term for being a felon in possession of a firearm, he invited “any appellate court” to reverse his decision.
The U.S. Court of Appeals for the Sixth District took him up on his offer.
In an opinion released this week in the U.S. Northern District Court of Ohio, the appeals court, in a 2-1 decision, vacated a 10-year sentence Judge Adams gave Edward Lightning, 37, of Shehy Street, after Lightning pleaded guilty to a charge of being a felon in possession of a firearm.
The charge was Lightning’s seventh firearms-related offense going back to when he was 14, in three different counties and four different courts. Prosecutors and defense attorneys at the time were recommending a sentence within federal sentencing guidelines of between 30 and 37 months, but Judge Adams said he felt a sentence well above the guidelines was necessary because of Lightning’s criminal history and his history with guns.
Lightning appealed his sentence, saying that it was excessive. Senior U.S. Appellate Judge Deborah L. Cook and U.S. Appellate Judge John K. Bush ruled in Lightning’s favor. U.S. Appellate Judge John B. Nalbandian dissented.
Lightning was arrested Sept. 21, 2018, by Youngstown police after a foot and car chase on the East Side after police tried to pull him over for a traffic violation. He was caught on South Garland Avenue.
Reports said police found a 9mm handgun, which was reported stolen from Columbiana County, and seven bags of crack cocaine. Lightning received a sentence from Mahoning County Common Pleas Court for that arrest. His federal sentence is running concurrent to that charge.
When Lightning was arrested on a federal warrant on Dec. 11, 2018, authorities found 17 counterfeit $100 bills and a loaded 9mm semiautomatic handgun, reports said. The charge Lightning was sentenced on by Judge Adams stemmed from that arrest.
The sentence called for by the federal sentencing guidelines, which is based on a number of factors such as a defendant’s criminal record and his recidivism rate, was between 30 and 37 months. The appellate decision noted that is the average sentence for someone who met the same guidelines Lightning did. The maximum sentence under the guidelines is 77 months.
Judge Adams wrote that Lightning has a history of gun crimes stretching back to 2001. He has been convicted or indicted for gun crimes in Mahoning, Trumbull and Stark counties as well as federal court.
“Given the conduct of the underlying offense, coupled with Lightning’s criminal history, it is clear to this court that Lightning is undeterred from not only possession of firearms but possessing firearms while under court supervision, firing the firearms he possess, possessing drugs along with firearms, possessing counterfeit money along with firearms and fleeing from law enforcement while possessing firearms,” Judge Adams wrote in his memorandum. “It is clear that Lightning will not stop engaging in unlawful behavior that puts himself and the general public at risk.”
At his sentencing hearing, Lightning told the court he knows he is not allowed to have guns but the reason he does is because he has been shot at before and he has also testified in court against others who may want retribution.
“…I wasn’t robbing nobody. I was just trying to protect myself,” he told the judge.”
A sentencing memorandum filed by his attorneys before Judge Adams said Lightning dropped out of school in the seventh grade and is on medication for depression and schizophrenia. The memorandum also said Lightning has never been convicted of a crime of violence, and the charge he was being sentenced for also was not a crime of violence because there was no human victim.
Judge Adams also added during the sentencing hearing itself that “if any appellate court wants to reverse me, they may do it. I will say it on the record.”
In their opinion the appeals court answered: “We accept that invitation.”
Writing for the majority, Judge Bush said Lightning’s sentence was not only above the guideline average and maximum, but that in 2019, only 10.3% of people charged with the same crime were sentenced above the guidelines. Judge Bush also noted that the guidelines are there to take account for a defendant’s conduct so there is no need to go above those, and he also noted that the charge Lightning was sentenced for was non-violent in the fact that the gun was found during a warrant and not used by Lightning to commit a crime.
Judge Bush noted that when upward variances of the sentences for the same charge were upheld by the appeals court, they were for people who used a gun while committing a crime.
In his dissenting opinion, Judge Nalbandian wrote that some of Lightning’s conduct was not included in the guidelines used by the attorneys in the case to determine where he should be sentenced. Among those crimes were a pursuit, being caught with guns, selling a gun to an undercover federal agent, hiding when there was a warrant for his arrest and being arrested for felonious assault.
The guidelines also do not include how fast it took authorities to arrest Lightning between prison sentences, Judge Nalbandian wrote. The federal sentencing commission estimates that people convicted of the same gun crimes as Lightning reoffend within 17 months, However, Lightning was consistently arrested less than that amount of time when he was released from jail or prison.
Judge Nalbandian wrote that Judge Adams used the guidelines as a benchmark “but found it wasn’t adequate to ‘deter crime and protect the public.'”
A new sentencing date has not been set yet.
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