U.S. v. Williams, 03-4091.

• Decision Date: 09 June 2005
• Docket Number: No. 03-4091.,03-4091.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Amin W. WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

410 F.3d 397

UNITED STATES of America, Plaintiff-Appellee, v. Amin W. WILLIAMS, Defendant-Appellant.

No. 03-4091.

United States Court of Appeals, Seventh Circuit.

Argued February 15, 2005.

Decided June 9, 2005.

John W. Vaudreuil (argued), Rita M. Rumbelow, Office of U.S. Atty., Madison, WI, for Plaintiff-Appellee.

Richard H. Parsons, Kent V. Anderson, Johanna M. Christiansen (argued), Peoria, IL, for Defendant-Appellant.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

Amin Williams pleaded guilty to unlawfully possessing a firearm following a felony conviction, see 18 U.S.C. § 922(g)(1), and the district court sentenced him to a prison term of 115 months. Amin now challenges the constitutionality of the felon-in-possession statute as applied to his possession of a firearm, which he characterizes as "purely intrastate possession." He also mounts a Sixth Amendment challenge to his sentence based on the fact that the district judge made certain findings as to the nature and extent of his criminal history as well as the circumstances of his offense that increased the sentencing range called for by the U.S. Sentencing Guidelines. We affirm Williams' conviction, finding no merit to his constitutional challenge to the felon-in-possession statute. As for Williams' sentence, although we find no plain error in any of the court's sentencing findings, we shall direct a limited remand to the district court so that the court may determine whether it would be inclined to sentence Williams differently knowing that the Sentencing Guidelines are advisory rather than mandatory. See United States v. Paladino, 401 F.3d 471, 483 (7th Cir.2005).

I.

On September 25, 2002, police in the city of Madison, Wisconsin were notified that a fight had occurred during which someone had brandished a gun. Police officers were directed to an apartment to which one of the suspected combatants had fled. They conducted a search of the premises with the lessee's consent and discovered a loaded, Smith and Wesson .44 magnum revolver with a scope, concealed beneath the drawer of the kitchen's oven. The gun had been reported stolen to the Madison police four days earlier. Williams was present in the apartment at the time of the search but identified himself to the officers using an alias and a false date of birth. After the police spoke with witnesses to the altercation and ascertained Williams' true identity, he was taken into custody and charged under state law with resisting or obstructing an officer based on his attempt to disguise his identity. The investigation into the altercation proved to be inconclusive. However, a subsequent examination of the gun by the Wisconsin State Crime Laboratory revealed prints matching Williams' right and left index fingers, left middle finger, and left thumb.

On May 19, 2003, Special Agent Jason Salerno of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives interviewed Williams. Williams told Salerno that he had been staying at his aunt's apartment, which is where the revolver was found, since January 2001. Williams admitted that he had handled and had access to the revolver, which he believed his friends had stolen. He also admitted that he had previously been convicted of felony offenses in both Illinois and Wisconsin.

On June 4, 2003, a federal grand jury returned a one-count indictment charging Williams with unlawfully possessing a firearm after having previously been convicted of a felony offense, in violation of 18 U.S.C. § 922(g)(1). The indictment alleged that the firearm "ha[d] previously traveled in and affected interstate commerce." R. 2. That allegation was based on the fact that the revolver had been manufactured in Massachusetts.

Pursuant to a written plea agreement, R. 27, Williams offered a plea of guilty to the indictment on September 18, 2003. In the course of the hearing on that plea, the Assistant United States Attorney ("AUSA") made a brief oral proffer of the evidence that the government would have presented to establish Williams' guilt at trial. See Fed.R.Crim.P. 11(b)(3). Among other things, she noted that "Mr. Williams told Agent Salerno his friends had stolen the revolver and shown it to him. Williams admitted handling the revolver and having access to it." R. 41 at 18. At the conclusion of the proffer, the district judge asked Williams whether he agreed with the facts that the AUSA had outlined, and Williams responded that he did. Id. Finding that there was an adequate factual basis for Williams' guilty plea, the district court accepted the plea and adjudged him guilty. Id. at 22.

A probation officer conducted a pre-sentence investigation and prepared a report ("PSR") recommending that Williams' base offense level under the Sentencing Guidelines be set at 24, based on the nature of his offense and two prior convictions for offenses that constituted crimes of violence. See U.S.S.G. § 2K2.1(a)(2) (Nov.2001).¹ The PSR also proposed a two-level enhancement to that base offense level because the Smith and Wesson revolver had been stolen. See U.S.S.G. § 2K2.1(b)(4). Three levels were to be deducted for Williams' acceptance of responsibility, id. § 3E1.1, resulting in an adjusted offense level of 23. The probation officer assigned Williams a criminal history of Category VI, based on five prior adult convictions and two juvenile adjudications of delinquency — all sustained before his 21st birth-day — and in view of the fact that Williams had committed the instant offense while on probation and less than two years following his release from prison on a prior sentence. See id. § 4A1.1. For an offense level of 23 and criminal history category of VI, the Sentencing Guidelines specified a sentencing range of 92 to 115 months.

Williams made no objections to the PSR, see R. 38 at 2-3, and at sentencing the district court adopted the probation officer's recommended findings as to the fact that the gun that Williams possessed had been stolen and as to the nature and extent of Williams' criminal history, id. at 4-5. After listening to the parties' respective positions as to sentencing, the court ordered Williams to serve a sentence of 115 months, the maximum sentence called for by the Guidelines. Id. at 9. "The Court is even in this day and age shocked at the violence, drugs and criminal activity that this defendant was involved with ever since his age of 13 and believes that this criminal record and his continued violation of the law does require a sentence at the top of the guideline range." Id. at 8.

I.

A. Commerce Clause Challenge to Section 922(g)(1)

Williams first challenges the constitutionality of the felon-in-possession statute as it applies to his possession of the Smith and Wesson revolver. Williams posits that because he possessed the gun solely within the State of Wisconsin, and because the record reveals no substantial connection between his possession of the gun and interstate commerce, Congress had no authority under the Commerce Clause, see U.S. Const. Art. I, § 8, cl. 3, to reach his possession of the gun. See United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (holding that Gun-Free School Zones Act of 1990, which proscribed possession of a firearm within 1000 feet of a school, exceeded congressional authority under Commerce Clause because it reached conduct that did not substantially affect or have a meaningful connection with interstate commerce). Williams did not make this argument below, so our review is solely for plain error. E.g., United States v. Rogers, 89 F.3d 1326, 1338 (7th Cir.1996).²

As Williams himself acknowledges, our precedents foreclose his argument; indeed, Williams indicates that he is making the argument solely to preserve it for Supreme Court review. It suffices to note that we have held repeatedly that section 922(g)(1), because it requires proof that the defendant possessed a firearm "in or affecting commerce," represents a valid exercise of congressional authority under the Commerce Clause. E.g., United States v. Olson, 408 F.3d 366, 372 (7th Cir.2005) (citing United States v. Lemons, 302 F.3d 769, 772 (7th Cir.2002)). We have also held that so long as the firearm crossed state lines at any point prior to the defendant's possession of the gun, his possession is "in or affecting commerce." E.g., id. (citing Lemons, 302 F.3d at 772-73); United States v. Harris, 394 F.3d 543, 551 (7th Cir.2005).

B. Findings as to Criminal History

As we noted above, Williams' criminal history affected the calculation of his sentencing range in two ways. First, the determination that two of Williams' prior convictions were for crimes of violence resulted in a higher base offense level. See U.S.S.G. § 2K2.1(a)(2). Second, the nature and extent of his prior criminal history placed him in the highest criminal history category. In both respects, Williams' prior convictions increased his sentencing range substantially. In pleading guilty, Williams admitted to one of his prior convictions, which was necessary to establish his status as a convicted felon who was prohibited from possessing a firearm. R. 41 at 18-19; see § 922(g)(1); see also, e.g., United States v. Gilbert, 391 F.3d 882, 883 (7th Cir.2004). He did not otherwise formally acknowledge the breadth and nature of his criminal record, however (although, as we have noted, he posed no objections to the PSR). Had Williams' criminal history been disregarded at sentencing with the exception of the one prior conviction he acknowledged, his base offense level likely would have been 20, see § 2K2.1(a)(4)(A), his adjusted offense level would have been 19, and with a criminal history category of II (for the two criminal history points assigned to the admitted conviction), the sentencing range specified by the Guidelines would have been 33 to 41 months.

Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Williams...