United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
JUDGE THERESA L. SPRINGMANN, UNITED STATES DISTRICT COURT
Defendant, Michael Smith, pled guilty to violating 18 U.S.C.
§ 922(g)(1), which makes it unlawful for a person who
has been convicted of a felony to possess a firearm. The
probation officer drafted a Presentence Investigation Report
(PSR) in preparation for sentencing. This Opinion and Order
resolves the Defendant's objection to the PSR.
PRESENTENCE INVESTIGATION REPORT
12:45 a.m. on June 17, 2017, officers were dispatched to
Brown Street in Fort Wayne, Indiana. Callers to the 911
emergency system reported that a man walking a dog was
arguing with others and waving a gun around. Responding
officers located the Defendant. He appeared intoxicated and
refused to cooperate with officers. When they apprehended the
Defendant, he had two Smith and Wesson magazines in his
pocket. The handgun was recovered nearby where the Defendant
had thrown it when he saw the police arrive. The handgun had
a loaded magazine with one round in the chamber.
Guideline § 2K2.1(a)(4)(A), the Defendant's base
offense level was set at 20. The PSR included a four-level
enhancement to the base offense level on grounds that the
Defendant possessed the firearm in connection with another
felony. See U.S.S.G. § 2K2.1(b)(6)(B)
(providing for increase in base offense level if the
defendant used or possessed any firearm “in connection
with another felony offense”). The probation
officer's basis for applying this enhancement was the
information presented in paragraphs nine through sixteen of
the PSR, which relayed the events leading up to his arrest.
The identified felony was Criminal Recklessness under Indiana
statute. The offense level was further enhanced by two points
for the Defendant's obstruction of justice, related to
the attempts he made from jail to have a female acquaintance
go to the location where he threw the firearm to retrieve it,
believing that officers had not found the gun.
taking into account the Defendant's acceptance of
responsibility adjustment, the total offense level was 23.
This offense level, when combined with the Defendant's
criminal history category of IV, yielded a Guideline range of
70 to 87 months of imprisonment. The Defendant objects to the
other-felony enhancement under § 2K2.1(b)(6)(B), and
argues that his total offense level should be 19. If his
objection is sustained, the Guideline range would be 46 to 57
months of imprisonment.
sentencing a defendant, the district court “must first
calculate the Guidelines range, and then consider what
sentence is appropriate for the individual defendant in light
of the statutory sentencing factors, 18 U.S.C. §
3553(a).” Nelson v. United States, 555 U.S.
350, 351 (2009); see United States v. Panice, 598
F.3d 426, 441 (7th Cir. 2010) (citing Nelson, and
setting forth the two-step process that a sentencing court
must engage in to determine a defendant's sentence). This
Opinion and Order is intended to resolve the issues related
to the first step, calculation of the Guidelines range.
relevant to sentencing should be proved by a preponderance of
the evidence. United States v. England, 555 F.3d
616, 622 (7th Cir. 2009); see also United States v.
Krieger, 628 F.3d 857, 862 (7th Cir. 2010) (advising
that sentencing factors that do not increase the
defendant's sentence beyond the statutory range may be
found by the court at sentencing by a preponderance of the
evidence). “A proposition proved by a preponderance of
the evidence is one that has been shown to be more likely
than not.” United States v. Davis, 682 F.3d
596, 612 (7th Cir. 2012). The Federal Rules of Evidence do
not apply to sentencing, United States v. Dean, 414
F.3d 725, 730 (7th Cir. 2005), and a court may rely on
hearsay as long as the information “has sufficient
indicia of reliability to support its probable accuracy,
” United States v. Rollins, 544 F.3d 820, 838
(7th Cir. 2008) (citation and quotation marks omitted).
See also United States v. Bradley, 628 F.3d 394, 400
(7th Cir. 2010) (“Sentencing judges necessarily have
‘discretion to draw conclusions about the testimony
given and evidence introduced at sentencing,' but
‘due process requires that sentencing determinations be
based on reliable evidence, not speculation or unfounded
allegations.'”) (quoting England, 555 F.3d
at 622). As such, “[a] district court may rely on facts
asserted in the PSR if the PSR is based on sufficiently
reliable information.” Rollins, 544 F.3d at
838. “The defendant bears the burden of proving that
the PSR is inaccurate or unreliable, ” and if he offers
no evidence to question the PSR's accuracy, the court may
rely on it. Id. However, it is the Government's
burden to prove by a preponderance of the evidence that an
enhancement applies. United States v. Hines, 449
F.3d 808, 815 (7th Cir. 2006); United States v.
Foutris, 966 F.2d 1158, 1160 (7th Cir. 1992).
relevant here, U.S.S.G. § 2K2.1(b)(6)(B) provides for a
four-level enhancement if the defendant “used or
possessed any firearm or ammunition in connection with
another felony offense.” The Guidelines commentary
explains that “in connection with” means the
enhancement applies if the firearm facilitated, or had the
potential of facilitating, another felony offense. U.S.S.G.
§2K2.1, cmt. 4. “Another felony offense” is
defined as “any federal, state, or local offense, other
than the explosive or firearms possession or trafficking
offense, punishable by imprisonment for a term exceeding one
year, regardless of whether a criminal charge was brought, or
a conviction obtained.” Id. n.14(C).
Additionally, the enhancement must be “related to the
offense of conviction.” United States v.
Seals, 813 F.3d 1038, 1045 (7th Cir. 2016). In other
words, the firearm “must be part of the same course of
conduct or common scheme or plan' as the offense of
conviction.” Id. (first citing U.S.S.G. §
2K2.1, cmt. 14(E)(ii); then citing id. §
1B1.3(a)(2)); see also United States v. Clinton, 825
F.3d 809, 811 (7th Cir. 2016) (stating that, to avoid
application of § 2K2.1(b)(6) to “offenses that may
be only tenuously connected to the offense of conviction . .
. the other offense must fall within relevant conduct in
order for the enhancement to apply”).
Court has no trouble concluding that the actions the
Defendant took with the firearm immediately prior to his
arrest are part of the relevant conduct of the offense. The
Defendant does not argue otherwise, but focuses on whether
the Government has established, by a preponderance of the
evidence, that his actions constituted a felony. In
particular, he disputes that his actions would constitute
Criminal Recklessness, as codified in Indiana Code §
35-42-2-2, which requires that a person “recklessly,
knowingly, or intentionally perform an act that creates a
substantial risk of bodily injury to another person.”
Ind. Code § 35-42-2-2(a). The offense is a Level 6
felony if the defendant is armed with a deadly weapon when he
commits the offense. Id. § 35-42-2-2(b)(1).
Defendant offers several facts that, he believes, remove his
actions from the realm of Criminal Recklessness. The
Defendant submits that if the 911 callers and the witnesses
had reported that the Defendant pointed the handgun at a
crowd of people, he would have been charged with Criminal
Recklessness. Instead, he was only charged in state court
with carrying a firearm without a license and possession of a
firearm by a domestic batterer. He notes that the only caller
who stated the Defendant was pointing the gun at people did
so in response to a leading question by the 911 operator.
Three other times, this same 911 caller only referred to the
Defendant pulling out his gun. Second, he maintains that the
facts of the case “do not make it possible to make a
reliable determination of whether [the Defendant's]
weapon was fully loaded with a round in the chamber.”
(Def.'s Br. 4, ECF No. 64.) His support for this
contention is centered around the number of bullets
referenced in the continuity sheets and lab reports generated
in this case.
on these factual unknowns-whether he ever pointed a gun with
a chambered round at another person-the Defendant then argues
that his actions did not create a substantial risk of bodily
injury within the meaning of the Indiana statute. To resolve
the Defendant's objection, the Court first considers what
facts are supported by the record. The Court will then
determine whether these facts would satisfy the elements of
felony Criminal Recklessness.
Court relies, in part, on Detective Wilkins's Report (Ex.
1 to Govt.'s Resp., ECF No. 66-1), which lists several
witnesses to the events of the evening and describes their
statements. Two of the witnesses, Rodney and Monica, reside
at the same address in Granger, Indiana. They were with other
people on Brown Street when they observed the Defendant
walking with a dog. Rodney stated that he made a comment
about the man having a nice dog, and the Defendant started to
argue with him. According to Rodney, the Defendant then
pulled a gun out. Rodney told him to chill out, but he kept
the gun out the remainder of the time. He did not point it at
Rodney, but was waiving it around. Detective Wilkins also
spoke to Monica. She stated that the Defendant did not point
the gun at any particular person, but was waiving it around.
These statements are consistent with Monica's statements
to the 911 ...