USA v. Suggs

Decision Date01 October 2010
Docket NumberNo. 09-2700.,09-2700.
Citation624 F.3d 370
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles SUGGS, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

624 F.3d 370

UNITED STATES of America, Plaintiff-Appellee,
v.
Charles SUGGS, Defendant-Appellant.

No. 09-2700.

United States Court of Appeals,Seventh Circuit.

Argued April 27, 2010.
Decided Oct. 1, 2010.


624 F.3d 371

Matthew J. Rinka (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

William H. Dazey, Jr. (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Police officers arrested Charles Suggs after a traffic stop during which he pulled a handgun from beneath the driver's seat of his truck. Suggs later pleaded guilty to being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), and was sentenced to 108 months' imprisonment. On appeal Suggs challenges the district court's application

624 F.3d 372

at sentencing of a 4-level increase under U.S.S.G. § 2K2.1(b)(6) for using or possessing the firearm in connection with another felony offense. We affirm.

I. Background

On April 29, 2007, Officer Javie Settlemoir of the Danville Police Department was dispatched to investigate a report of a possible drunk driver driving a red pickup truck. Officer Settlemoir and another officer located the truck and saw its driver commit several traffic offenses. Settlemoir initiated a traffic stop, but the driver did not immediately stop. Eventually, the driver pulled into a parking lot.

As officers approached the truck, the driver, Suggs, stepped out and began to gather documents, first from his wallet and then from the vehicle's glove compartment. He informed the officers that he did not have his license with him. The officers asked Suggs to step to the rear of the vehicle. He did not comply; instead, he leaned into the truck, this time reaching under the front seat. Officer Settlemoir tried several times to grab Suggs's arm and pull it from the cab of the truck, repeating his directive that Suggs move to the rear of the vehicle. Each time, Suggs wrested his arm free and reached again under the front seat of the truck. On the fourth try, Settlemoir was able to grab Suggs's right forearm and jerk it, and the force of Settlemoir's tug knocked a handgun out of Suggs's right hand. Settlemoir and another officer then secured and handcuffed Suggs. When the officers asked what he had intended to do with the weapon, Suggs replied, “I was going to give it to you.” Officers then arrested Suggs.

Suggs was later charged with being a felon in possession of a firearm and pleaded guilty pursuant to a plea agreement. In Suggs's presentence report, the probation officer applied a base offense level of 20, see U.S.S.G. § 2K2.1(a)(4)(A); added two levels because the firearm was stolen, see id. § 2K2.1(b)(4)(A); added four levels because Suggs possessed the firearm in the commission of another felony offense, resisting law enforcement with a deadly weapon under section 35-44-3-3(b)(1)(B) of the Indiana Code, see U.S.S.G. § 2K2.1(b)(6); and subtracted three levels for acceptance of responsibility, see id. § 3E1.1, resulting in a total offense level of 23. With Suggs's criminal history category of IV, this yielded a guidelines range of 70 to 87 months' imprisonment.

At sentencing Suggs disputed the 4-level increase under § 2K2.1(b)(6). This guideline applies if a defendant “used or possessed any firearm or ammunition in connection with another felony offense.” See id. § 2K2.1(b)(6). Suggs conceded that he “possessed” a firearm while resisting the officers. But he disputed that his possession related to another felony offense; he asserted instead that his actions fell under section 35-44-3-3(a)(1), the Indiana statute that makes it a Class A misdemeanor to “forcibly resist[ ], obstruct[ ], or interfere[ ] with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer's duties.” He argued that he neither “drew” nor “used” the handgun as required to elevate this offense to a Class D felony under Indiana law. See Ind.Code § 35-44-3-3(b)(1)(B). Had the district court agreed, the resulting total offense level of 19 would have corresponded to a guidelines range of 46 to 57 months' imprisonment.

After hearing argument, the district court disagreed, finding that Suggs had drawn the weapon within the meaning of section 35-44-3-3(b)(1)(B) and adopting the guidelines calculations recommended by the presentence report. The court then imposed a 108-month, above-guidelines

624 F.3d 373

prison sentence, citing among other things Suggs's quick return to crime after completing his 20-year prison term for murder and the court's belief that his long criminal history was underrepresented by the applicable guidelines range. When pronouncing the sentence, the judge noted that he would have imposed the same sentence even if it had not applied § 2K2.1(b)(6).

II. Discussion

On appeal Suggs reiterates his argument that the district court should not have applied a 4-level increase under § 2K2.1(b)(6). This argument actually comprises two related arguments. The first involves the applicability of § 2K2.1(b)(6) to his conduct; Suggs argues that § 2K2.1(b)(6) should not apply because he never “used” the firearm within the meaning of the guideline. The second, related argument involves the proper characterization of his conduct under section 35-44-3-3, the Indiana resisting-law-enforcement statute; Suggs asserts that his conduct did not satisfy the statutory requirements necessary to make his violation of section 35-44-3-3 a felony rather than a misdemeanor under Indiana law.

Regarding the first argument, Suggs argues that he did not “use” the handgun during the traffic stop within the meaning of § 2K2.1(b)(6) because applicable precedent has defined “use” to mean active employment or implementation. See United States v. Lang, 537 F.3d 718, 720-21 (7th Cir.2008) (defining “use” under § 2K2.1 as employment for some purpose); see also Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (holding that use of a firearm “signifies active employment” and “more than mere possession”). At most, Suggs contends, he merely pulled the handgun from beneath the seat.

But Suggs's argument omits a key consideration: He need not have “used” the firearm for § 2K2.1(b)(6) to apply. The guideline requires the court to apply a 4-level increase “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6). Though the facts suggest that Suggs never had the opportunity to actively employ the...

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8 cases
  • U.S. v. Waltower
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 5 Julio 2011
    ...the unlawful possession of the firearm had at least the potential of facilitating a drug trafficking offense. E.g., United States v. Suggs, 624 F.3d 370, 373 (7th Cir.2010); United States v. LePage, 477 F.3d 485, 489 (7th Cir.2007) ( “[W]hen the guns are possessed along with the materials o......
  • United States v. Gulley
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 17 Junio 2013
    ...We are mindful of this variance, but it is the government's burden to prove the sentencing error was harmless, e.g., United States v. Suggs, 624 F.3d 370, 376 (7th Cir.2010), and the sentencing transcript here is, at best, murky. The district judge practically invited an appeal of the sente......
  • United States v. Lemle
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 19 Agosto 2016
    ...upward adjustment for felon in possession of firearm who also illegally transferred firearm just before arrest); United States v. Suggs, 624 F.3d 370, 373 (7th Cir. 2010) (upholding upward adjustment for felon in possession of firearm who also committed state felony of resisting law enforce......
  • Davis v. United States
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • 18 Enero 2018
    ...felony offense, but also when a defendant possesses a firearm in connection with another felony offense. See United States v. Suggs, 624 F.3d 370, 373 (7th Cir. 2010) ("[P]ossession alone is sufficient to bring a felony in which the firearm was involved within the meaning of § 2K2.1(b)(6) a......
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