U.S. v. Gear

• Decision Date: 17 August 2009
• Docket Number: No. 07-4038.,No. 07-4039.,07-4038.,07-4039.
• Citation: 577 F.3d 810
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jonathan GEAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

577 F.3d 810

UNITED STATES of America, Plaintiff-Appellee, v. Jonathan GEAR, Defendant-Appellant.

No. 07-4038.

No. 07-4039.

United States Court of Appeals, Seventh Circuit.

Argued January 5, 2009.

Decided August 17, 2009.

Mark Karner (argued), Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Daniel T. Cook (argued), Office of the Federal Public Defender, Springfield, IL, Richard H. Parsons, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

PER CURIAM.

Jonathan Gear pleaded guilty to possessing a firearm, despite prior convictions that made it unlawful for him to do so. 18 U.S.C. § 922(g)(1). He was sentenced to 63 months' imprisonment. Because he committed that crime while on supervised release from an earlier firearms conviction, the judge revoked his release and directed him to spend 21 additional months of the earlier sentence in custody. The effective sentence thus is 84 months. Gear contends that it is too high, for three principal reasons: first, the judge did not give him enough credit for assistance to the prosecutor (who filed a motion under U.S.S.G. § 5K1.1); second, 84 months exceeds the Guideline for his new crime (57 to 71 months) and is unreasonable; third, the judge miscalculated the recommended range by starting with a base offense level of 20 under § 2K2.1(a)(4) rather than 14 under § 2K2.1(a)(6).

The first two arguments are unavailing. The district judge acknowledged the prosecutor's motion but concluded that Gear's criminal history (he is in category IV) and risk of recidivism justify a sentence within the recommended range notwithstanding the assistance. That conclusion does not constitute an abuse of discretion. Nor is there any error (or abuse of discretion) in running the new sentence consecutively to 21 months imposed on the revocation of supervised release. A felon who obtains and uses a firearm promptly after being released from prison on another firearms offense is dangerous; the appropriate sentence for such a person, who effectively proclaims himself undeterrable, is higher than the sentence for someone who lets several years pass between episodes of unlawful possession. A felony committed while on supervised release from an earlier conviction for the same offense cries out for lengthy imprisonment to protect society by incapacitating a person who scoffs at both legal and moral obligations.

The third argument, by contrast, is substantial. Section 2K2.1(a)(4) sets a base offense level of 20 for a person who has a prior felony conviction for a crime of violence. A felon-in-possession conviction is not a "crime of violence" under § 2K2.1(a)(4), which incorporates by reference the definitions in U.S.S.G. § 4B1.2(a). See § 2K2.1 Application Note 1 ¶ 3.A felon-in-possession conviction makes one a "prohibited person", and a "prohibited person" who does not have a conviction for a "crime of violence" starts with a base offense level of 14 under § 2K2.1(a)(6)(A). Six offense levels is the difference between a range of 30 to 37 months and a range of 57 to 71 months.

Section 4B1.2(a) is in the career-offender section of the Sentencing Guidelines. We concluded in United States v. Woods, No. 07-3851, 2009 WL 2382700 (7th Cir. Aug. 5, 2009), that the language defining crimes of violence for career-offender purposes should be read the same way as the definitions of "violent felonies" in statutes such as 18 U.S.C. § 16 and 18 U.S.C. § 924(e), recidivist-sentencing statutes from which the Sentencing Commission borrowed when drafting § 4B1.2. And Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), which was decided after Gear's sentencing, has substantially changed the rules for the identification of qualifying convictions. Gear did not object at sentencing to the classification of his earlier conviction, but that classification was plain error under the approach this court has adopted in Woods. See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (spelling out the standards for plain-error review).

When using § 2K2.1(a)(4), the district court relied on Gear's conviction for reckless discharge of a firearm, in violation of 720 ILCS 5/24-1.5(a). This statute provides:

A person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual.

This statute does not have as an element the use or attempted use of force against the person of another. Most convictions under this law appear to arise from shooting guns into the air. See, e.g., People v. Collins, 214 Ill.2d 206, 291 Ill.Dec. 686, 824 N.E.2d 262 (2005); People v. Watkins, 361 Ill.App.3d 498, 297 Ill.Dec. 492, 837 N.E.2d 943 (2005). Thus the crime is violent, or not, under the residual category of U.S.S.G. § 4B1.2(a)(2), which includes a crime that is "burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." And the problem with classifying reckless discharge of a firearm as violent under the residual category is that Begay deems an offense included only if it is similar to burglary or arson in the sense of entailing "purposeful, violent, and aggressive conduct". 128 S.Ct. at 1586.

Section 720 ILCS 5/24-1.5(a) includes at least two varieties of weapons offenses. In one, the person discharges the gun recklessly. (Think of someone carrying a pistol in his waistband who draws it out to show it to a friend and recklessly pulls the trigger in the process, firing a bullet into the crowd even though he did not mean to shoot.) In the other, the person fires the gun deliberately but is reckless about the consequences. (Think of someone who stands...