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United States v. Smith

United States District Court, N.D. Indiana, Fort Wayne Division

September 26, 2018




         The 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.


         At 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.

         Applying 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.

         After 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.


         When 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.

         Facts 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).

         As 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”).

         The 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).

         The 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.

         Based 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.

         The 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 ...

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