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United States v. Young

United States Court of Appeals, Seventh Circuit

July 13, 2017

United States of America, Plaintiff-Appellee,
v.
Gregory F. Young, Defendant-Appellant.

          Argued March 29, 2017

         Appeal from the United States District Court for the Central District of Illinois. No. 4:16-cr-40002-SLD-1 - Sara Darrow, Judge.

          Before Wood, Chief Judge, and Rovner and Williams, Circuit Judges.

          ROVNER, CIRCUIT JUDGE.

         Gregory F. Young pled guilty to one count of unlawful possession of a firearm by a felon. He challenges his sentence on appeal, asserting that the court procedurally erred by relying on a clearly erroneous fact and by incorrectly applying guidelines commentary when determining his sentence. We affirm.

         I.

         In 2007, Young was convicted of two counts of burglary in Indiana. After serving a term of imprisonment, he was released on probation in March 2015. Young was under the influence of cocaine when he committed the robberies and so, as a condition of probation, he was subject to random drug screenings. In October 2015, he appeared for a random drug test wearing a "Whizzinator, " a prosthetic penis that comes with a synthetic urine pack.[1] The device was confiscated and Young provided a urine sample that tested positive for cocaine, opiates and marijuana. A warrant was issued for his arrest. The next month, he was stopped by a state trooper while driving through Illinois because his windshield was obstructed by a number of air fresheners. See United States v. Garcia-Garcia, 633 F.3d 608, 615-16 (7th Cir. 2011) (noting that air fresheners may (or may not) constitute material obstructions under Illinois law depending on their size, their position relative to the driver's line of vision, and whether they are stationary or mobile); 625 ILCS 5/12-503(c) ("No person shall drive a motor vehicle with any objects placed or suspended between the driver and the front windshield ... which materially obstructs the driver's view."). A records check revealed that he had an outstanding warrant in Indiana. He consented to a pat-down search that led to the discovery of six rounds of .40 caliber ammunition, a quarter gram of heroin and a half gram of marijuana in his pants pockets. In a subsequent search of the vehicle, law enforcement officers found a loaded Smith & Wesson .40 caliber semi-automatic handgun, an unloaded SKS-type semi-automatic 7.62 mm rifle, nine SKS rifle magazines (eight of which were fully loaded with a total of 221 rounds of 7.62 mm ammunition), 1.3 pounds of marijuana, and a half pound of synthetic marijuana. After waiving his right to remain silent, Young explained to law enforcement officers that he had the guns and ammunition because he believed that the gang to which he previously belonged wanted to kill him over an old drug debt.

         Young pled guilty to a single count of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). The parties agreed that Young's base offense level was 20 under guidelines section 2K2.1(a)(4)(B). That level was increased by four under section 2K2.1(b)(6)(B) because Young possessed the firearm in connection with another felony offense, namely, possession of a controlled substance. The court subtracted three levels for acceptance of responsibility under section 3E1.1, resulting in a total offense level of 21. Young's criminal history placed him in Category V, and the resultant sentencing range was 70 to 87 months. Young requested a sentence of 70 months and the government simply requested a within-guidelines sentence.

         The probation officer suggested that an upward variance might be appropriate under section 4B1.2(a) and the accompanying Application Note 4, based on Young's prior burglary convictions. Section 4B1.2(a), which defines the term "crime of violence/' had recently been amended to remove "burglary of a dwelling" from the list of crimes of violence. Had it remained on the list, Young's base offense level would have been 22 rather than 20, and his resultant guidelines range would have been 84 to 105 months' imprisonment. Application Note 4 provides that there may be cases in which a burglary involves violence but does not qualify as a crime of violence under section 4B1.2(a), and so an upward departure maybe appropriate to account for that circumstance. Young responded to the probation officer's suggestion by contending that there were no facts in the presentence report regarding his burglary convictions that would support an upward variance for violence.

         The presentence report described the two counts of burglary for which he was convicted as follows:

On February 5, 2007, the defendant did break and enter into the dwelling of Hugo Gonzalez Ibarra, with the intent to commit a felony therein, to-wit: the crime of Theft. Count 2 - Burglary, a Class B Felony, I.C. Section 35-43-2-1(1)(B)(i).
On February 5, 2007, the defendant did break and enter into the dwelling of James Johnson, with the intent to commit a felony therein, to-wit: the crime of Theft. Count 4 - Burglary, a Class B Felony, I.C. Section 35-43-2-1(1)(B)(i).

R. 22, at 7. Young was also charged with one count of taking property from Ibarra by using or threatening the use of force while armed with a knife, and one count of knowingly confining Ibarra without his consent in a residence while armed with a deadly weapon, with both counts occurring the ...


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