United States v. Shelton
| Decision Date | 03 October 2018 |
| Docket Number | 17-3396,Nos. 17-3084,17-3559,17-3127,s. 17-3084 |
| Citation | 905 F.3d 1026 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Andrew SHELTON, Frederick Lewis, Patrick Edwards & Terry Walker, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Christopher V. Parente, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Appellee.
Gregory T. Mitchell, Attorney, LAW OFFICE OF GREGORY T. MITCHELL, P.C., Homewood, IL, Wayne Barry Slaughter, Jr., Attorney, W.B. SLAUGHTER & ASSOCIATES, Flossmoor, IL, for Defendant-Appellant, Andrew Shelton.
Thomas W. Patton, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL, Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL, for Defendant-Appellant, Frederick Lewis.
Molly E. Armour, Attorney, LAW OFFICE OF MOLLY ARMOUR, Chicago, IL, Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL, for Defendant-Appellant, Patrick Edwards.
John C. Legutki, Attorney, Chicago, IL, Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL, for Defendant-Appellant, Terry Walker.
Before Wood, Chief Judge, and Flaum and Hamilton, Circuit Judges.
Defendants Andrew Shelton, Frederick Lewis, Patrick Edwards, and Terry Walker raise several sentencing challenges. First, all defendants argue the district court improperly imposed multiple offense-level enhancements under U.S.S.G. § 2K2.1 in violation of double counting principles. Second, Shelton challenges the court's application of three criminal history points for a prior burglary conviction. Third, Lewis argues the court erred by imposing a three-year term of supervised release without separately addressing the § 3553(a) factors. We affirm.
In the early morning on April 12, 2015, eight men—Andrew Shelton, Alexander Peebles, Elgin Lipscomb, Terry Walker, Patrick Edwards, Frederick Lewis, Dandre Moody, and Marcel Turner—stole about 104 Ruger firearms from a cargo train parked in a Chicago rail yard. The firearms were new and packaged in their original boxes. The eight burglars then divided the stolen firearms among themselves and sold them on the black market. Most of the guns have not been recovered, but at least seventeen of the stolen guns have been recovered from crime scenes.
The operative indictment is the third superseding indictment, which the grand jury returned on October 15, 2015. Relevant to this appeal, the indictment charged defendants with: possession of a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g) (Count One); possession of a stolen firearm, in violation of 18 U.S.C. § 922(j) (Count Two); and cargo theft, in violation of 18 U.S.C. § 659 (Count Three). Shelton pleaded guilty to Counts One and Two; Lewis pleaded guilty to Counts One and Three; Edwards pleaded guilty to Counts One and Two; and Walker pleaded guilty to Counts One and Three.
The district court sentenced Andrew Shelton on October 3, 2017. Relevant here, the pre-sentence report ("PSR") suggested: a two-level Guidelines enhancement for stolen firearms pursuant to § 2K2.1(b)(4)(A) (the "stolen firearm enhancement"); a four-level enhancement for "engag[ing] in the trafficking of firearms" pursuant to § 2K2.1(b)(5) (the "trafficking enhancement"); and a four-level enhancement for "us[ing] or possess[ing] any firearm or ammunition in connection with another felony offense" pursuant to § 2K2.1(b)(6)(B) (). Shelton objected to the application of the other felony offense enhancement, and the district court overruled the objection. It reasoned:
Here, Mr. Shelton clearly possessed the firearms that he was taking from the train in connection with another offense, namely, that train robbery. Application note 14(B) to the guideline, 2K2.1, is directly on point. It says that subsection (b)(6)(B), which is the subsection we're talking about, applies in a case of a defendant who during the course of a burglary finds and takes a firearm even if the defendant did not engage in any other conduct with that firearm during the course of the burglary.
Additionally, Shelton objected to the PSR's recommendation of eleven criminal history points. Pursuant to U.S.S.G. § 4A1.2(a) and § 4A1.2(k), the PSR suggested adding three criminal history points for each of three 1999 burglary convictions. According to the PSR, Shelton was first arrested for burglary on January 24, 1999; on July 28, 1999, he pleaded guilty and he was sentenced to three years of probation. On February 8, 1999, Shelton again was arrested for burglary; on March 8, 1999, he pleaded guilty and was sentenced to twenty-nine days' imprisonment followed by three years of probation. And on August 26, 1999, Shelton was arrested for burglary a third time; he pleaded guilty on May 23, 2000. By committing this third burglary, Shelton violated the terms of his probation. The court revoked his probation and, for each of the three burglary convictions, sentenced Shelton to "4 years of custody in the IDOC, concurrent with [the other two case numbers]." He was released from custody on February 21, 2001, which is within fifteen years of the commencement of this case, April 12, 2015.
At sentencing, Shelton argued criminal history points were only appropriate for the May 2000 conviction. The court disagreed. Because there was no evidentiary presentation to the contrary, the court assumed the PSRs description of Shelton's prior convictions was accurate. It concluded that "what the state court did formally was to impose that four-year sentence of revocation on each of those three cases, two of them being probation violations and one of them being an original sentence." Because the revocation term of imprisonment plus the original term of imprisonment was greater than thirteen months, and Shelton's date of release from incarceration was within fifteen years of commencement of the present offense, the court imposed three criminal history points for Shelton's March 1999 conviction. See U.S.S.G § 4A1.2(e), (k).1
In total, Shelton's adjusted offense level was 29 and criminal history category was IV. The Guidelines suggested a term of imprisonment of 121–151 months. After the court examined the § 3553(a) factors, it commented that the disputed Guidelines factors and Shelton's criminal history score were not material to its sentencing decision. The court then imposed a below-Guidelines imprisonment term of 120 months and three years of supervised release.
The district court sentenced Frederick Lewis on October 5, 2017. Amongst the enhancements to his base offense level, the PSR suggested the two-level stolen firearm enhancement; the four-level trafficking enhancement; and the four-level other felony offense enhancement. Lewis raised several objections; relevant here, Lewis argued the other felony offense enhancement was improper because it resulted in "double counting," as he also received the trafficking and stolen firearm enhancements. The district court overruled Lewis's objection. It explained:
There's no double counting involved because there has been an enhancement because the firearms were stolen. The enhancement for possession of the firearm in connection with another offense goes beyond the fact that the firearm was stolen. It's possession of the firearm in connection with the commission by Mr. Lewis of another offense, namely stealing firearms off the train car.... [T]he stolen firearm enhancement would apply whether or not Mr. Lewis had anything to do with the theft of the firearm in the first place.
Lewis's total adjusted offense level was 34 and criminal history category was VI. Due to a statutory cap, the Guidelines recommended 240 months' imprisonment. They also suggested one-to-three years of supervised release. The court considered and discussed the § 3553(a) factors at length, and it imposed a below-Guidelines imprisonment term of 180 months and a three-year term of supervised release. The court explained that supervised release was appropriate "[g]iven the seriousness of this offense and the long unabated history of criminal conduct by Mr. Lewis." It also noted that the "term of supervised release is not intended to be additional punishment" but instead is "intended to be a resource." It emphasized that the probation officer would "provide support and guidance and mentoring and resources." At the end of the hearing, the government asked the court if it was "fair to say that the Court would impose that sentence regardless of how the enhancements were [applied]." The court replied that it "did intend to point that out," and stated it would not have imposed a lower sentence if the Guidelines range was lower.
Next, the district court sentenced Patrick Edwards on November 2, 2017. The PSR suggested applying the two-level stolen firearm enhancement; the four-level trafficking enhancement; and the four-level other felony offense enhancement. Edwards objected; he argued the court could not impose the stolen firearm enhancement or the other felony offense enhancement due to double counting. The court overruled both objections.
First, the court saw no double counting concern with applying the stolen firearm enhancement to a person convicted of being a felon in possession of a firearm. It explained:
[J]ust because someone is a felon in possession of a firearm, they're not necessarily in possession of a stolen firearm.... [W]here the firearm possessed by that prohibited person also happens to be a stolen firearm, the commission has said that there needs to be a further two-level enhancement based on the additional seriousness of the fact that the firearm being possessed by the prohibited person is a stolen firearm.
Second, as for the other felony offense enhancement, the court rejected the argument that...
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United States v. Bravo
...court miscalculated the guidelines range. We must also decide whether the error was prejudicial or harmless. United States v. Shelton , 905 F.3d 1026, 1031 (7th Cir. 2018). As we said in United States v. Corner , 967 F.3d 662 (7th Cir. 2020), a "procedural error (such as a miscalculation of......
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...argues that even if the district court did not abide by Rule 32's prescriptions, its error was harmless. Cf. United States v. Shelton , 905 F.3d 1026, 1031 (7th Cir. 2018) ("[E]rrors in calculating the advisory guideline range are subject to harmless error analysis."). We do not see it that......
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