US v. Taylor, PLAINTIFF-APPELLEE

• Decision Date: 03 December 2001
• Docket Number: PLAINTIFF-APPELLEE,No. 00-2230,DEFENDANT-APPELLANT,00-2230
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA,, v. CURTIS D. TAYLOR,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 980

272 F.3d 980 (7th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. CURTIS D. TAYLOR, DEFENDANT-APPELLANT.

No. 00-2230

U.S. Court of Appeals, Seventh Circuit

Argued October 25, 2001

Decided December 03, 2001

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:99 CR 160--Rudy Lozano, Judge.

Before Bauer, Posner, and Evans, Circuit Judges.

Terence T. Evans, Circuit Judge

Curtis D. Taylor and his girl friend had the misfortune of pulling up in an alley behind a drug house in Gary, Indiana, at the same time that federal agents on the Gary Response Investigative Team (GRIT) were conducting surveillance of the house. Taylor got out of his automobile and entered a garage. When the agents tried to stop him as he came out of the garage, he ran. Captured and arrested a few minutes later, he was carrying a Glock 9 millimeter handgun which, quite naturally, was confiscated. Taylor was taken to GRIT headquarters where he was shackled to the floor and left alone in a room for several minutes. He escaped by pulling a bolt loose from the shackles.

A week later, while Taylor was still on the lam, a shooting occurred on Washington Street in Gary. Although Taylor denied it, three people identified him as the shooter. He was found later that day hiding under a bed in another house where officers also found nine zip-lock bags of crack cocaine.

As a result of all this activity, Taylor was charged in a four-count indictment. The first two counts involve the events of the first day behind the drug house. In count 1, he was charged as an unlawful user of a controlled substance in possession of a firearm in violation of 18 U.S.C. § 922(g)(3). In the second count, he was charged with escape in violation of 18 U.S.C. § 751(a). For the events a week later, he was charged in count 3 with another firearms violation and in count 4 with possession with intent to distribute crack cocaine. He pled guilty to the first two counts; counts 3 and 4 were dismissed. He was sentenced to 110 months in prison.

Taylor appeals his sentence, focusing on the manner in which cross-references and "relevant conduct" provisions of the sentencing guidelines were applied to him. In short, the events surrounding the shooting were used to cross-reference from the firearms guideline to the attempted murder guideline, which then provided the offense level for Taylor's sentencing. The district court determined Taylor's base offense level by starting with U.S.S.G. § 2K2.1(a), the firearms guideline applicable to this case based on his plea of guilty to count 1, giving him an offense level of 20. However, because the court also found that Taylor attempted the commission of another offense--the shooting a week later--the court cross-referenced from U.S.S.G. § 2K2.1 to U.S.S.G. § 2X1.1, which covers attempt, solicitation, or conspiracy. That guideline, in turn, contains a cross-reference providing that if an attempt, solicitation, or conspiracy is expressly covered by another guideline, the latter guideline should be applied according to its terms. U.S.S.G. § 2X1.1(c). Having found that Taylor was the shooter a week after he escaped, the court concluded that the attempted murder guideline, U.S.S.G. § 2A2.1, expressly covered the situation. Because the judge followed this trail from the guideline for firearms violations to the guideline for attempt and then to the guideline for attempted murder, Taylor's offense level rose to 28. Taylor attacks the court's findings of fact regarding his role in that shooting, and he disputes whether, in any event, his conduct on the day of the shooting, even if it were established, should have been considered at his sentencing.

In evaluating Taylor's claim, we review factual determinations underlying the application of the guidelines for clear error. The interpretation of a guidelines term is a matter of law, subject to our de novo review. United States v. Gio, 7 F.3d 1279 (7th Cir. 1993).

The problem facing the government in defending Taylor's sentence is how to convince us that a connection exists between the attempted murder and the possession of the firearm that was confiscated from him one week earlier. The government concedes that the scope of the relevant conduct guideline does not allow a finding that the shooting is directly relevant to count 1--the possession of a firearm. That possession ended when the firearm was seized. The shooting had nothing to do with that offense. But to be effective in raising Taylor's offense level, the shooting must somehow be linked to the firearm count because the firearm guideline carries the larger base offense level, and it is the guideline with the cross-reference that ultimately leads to the attempted murder guideline.

The link, according to the government, is the escape. It argues that the escape is relevant conduct to the firearms charge. The argument transforms the escape, which we recall is a crime to which Taylor pled guilty, into "relevant conduct." The escape is said to be relevant conduct to the firearms violation because the escape was an attempt to avoid detection or responsibility for the firearms violation. The next step is characterizing the shooting one week later as relevant conduct to the escape. Finally, to complete the argument, it is necessary to say that the escape, which is relevant conduct to the firearms violation, brings with it the shooting, which is relevant conduct to the...