United States v. Haskins, Dwayne ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1438
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DWAYNE HASKINS,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:05 CR 86-01—Rudy Lozano, Judge.
____________
ARGUED JANUARY 3, 2007—DECIDED DECEMBER 26, 2007
____________
Before KANNE, ROVNER, and EVANS, Circuit Judges.
ROVNER, Circuit Judge. A wild night at Dena’s Pub, a
local nightclub in Gary, Indiana, ended prematurely
when police arrived on the scene and confiscated drugs
and firearms from Dena’s patrons and employees. One
employee was Dwayne Haskins, who worked as a
security guard at Dena’s. Police took Haskins’ firearm
but later returned it because he lawfully possessed it.
Police also inadvertently gave Haskins a Beretta .40-
caliber pistol. Not one to “look a gift horse in the mouth”
(as he later put it), Haskins accepted the weapon, al-
though it was not his. He later sold the Beretta to Darryl
Eller, his friend and fellow security guard at Dena’s.
Unfortunately for Haskins, Eller was not only a con-
2 No. 06-1438
victed felon, he was also cooperating with federal agents.
Consequently, Haskins was convicted of violating 18
U.S.C. § 922(d), which makes it a crime to sell a firearm
to an individual known or reasonably believed to be a
felon. Haskins appeals, and we affirm.
I.
Haskins became acquainted with Eller in 2000 at Dena’s
Pub. Both men provided security in some capacity at
Dena’s. In addition to their security positions at Dena’s,
both Haskins and Eller worked in various other jobs
relating to law enforcement and security. Before resign-
ing after an investigation into his conduct, Eller was
employed as a police officer in Gary. Thereafter he worked
in the private security industry. In addition to his night
job at Dena’s, Haskins worked during the day as a hall
monitor at Gary Roosevelt High School.
Although Haskins had nothing in his past restricting
his possession of firearms, Eller had several felony con-
victions. As relevant here, Eller was convicted in 1993 of
being a felon-in-possession and sentenced to 27 months’
imprisonment. This did not deter Eller from again possess-
ing a firearm, an offense for which he was arrested in
October 1999. This incident involved him impersonating
a police officer by driving a Ford LTD with lights and
siren while trailing a fire engine at a high rate of speed.
According to Eller, because the circumstances surround-
ing his arrest were publicized, he told his coworkers at
Dena’s, including Haskins, about it, including the fact
that he had a previous felony conviction.
On March 1, 2003, police arrived to a packed crowd at
Dena’s and began arresting individuals who possessed
drugs and firearms. During the raid, police confiscated
firearms from both Eller and Haskins. Specifically, they
No. 06-1438 3
arrested Eller as a felon-in-possession and took from him
a .40-caliber Beretta, Model 8040 Mini Cougar. Then,
instead of taking Eller’s Beretta into evidence, police
inadvertently returned it to Haskins, in addition to his
own firearm that they had previously confiscated.
Eller was taken into custody and admitted to being
a felon. He later revealed to police that his firearm had
been purchased for him by Dena’s head of security, Arthur
McClain, and that Haskins had also agreed to purchase
a firearm for him. These revelations prompted agents to
open investigations into Eller, McClain, and Haskins. Eller
agreed to cooperate with the agents in the investiga-
tions into Haskins and McClain.
Police wired Eller, who made a number of phone calls to
Haskins arranging to buy the weapon. In those calls,
Haskins explained to Eller that he would sell him a
Beretta Mini Cougar so that he (Haskins) would not have
to go to the store for Eller. Their phone conversations
culminated with a meeting in front of the high school
where Haskins worked, at which time Eller paid Haskins
$440 for the gun. After the sale, Eller reported sur-
prisedly to agents that the weapon was the same firearm
that police had confiscated from him in the raid on Dena’s.
Eller continued to work with the authorities after the
sale and participated in several more recorded conversa-
tions discussing the possibility of Haskins buying him
another gun, but it never happened.
After the sale, Haskins met with ATF agent Daniel
Mitten. In his interview with Agent Mitten, Haskins
admitted to selling the gun to Eller. When Agent Mitten
asked Haskins whether he knew Eller was a felon,
Haskins responded, “Aaah, yeah.” He did, however, go on
to say that although he knew Eller had been in some
trouble, he did not know the specifics or whether Eller
had been imprisoned.
4 No. 06-1438
At trial, Eller testified about his conversations with
Haskins leading up to and after the sale. He explained
that Haskins was aware of his felony conviction. The jury
also heard the taped conversations between Haskins
and Eller. Additionally, Agent Mitten recounted for the
jury his conversation with Haskins where Haskins ad-
mitted selling Eller the weapon. The jury convicted
Haskins of a single count of violating 18 U.S.C. § 922(d)(1)
by selling a firearm knowing or having reasonable cause
to believe that Eller was a felon.
II.
Haskins first argues that his conviction should be
reversed because both the government and the district
court constructively amended the indictment. Specifically,
Haskins maintains that the government was obligated
to prove that he knew, not only that Eller had been
convicted of a felony, but that it was the particular felony
referred to in the indictment. The indictment charged
Haskins with selling a firearm to Eller “knowing and
having reasonable cause to believe that [Eller] had previ-
ously been convicted of a crime punishable by imprison-
ment for a term exceeding one year, to wit: Possession of
a Firearm by a Felon in 1993.” At trial the government
put on evidence that Haskins knew generally that Eller
had a felony conviction. It did not, however, prove that
Haskins knew specifically about the 1993 conviction.
According to Haskins, the phrasing of the indictment
obligated the government to prove that he knew about
Eller’s 1993 conviction. On a related note, he claims that
the district court constructively amended the indict-
ment by instructing the jury that he could be convicted
based on evidence that he knew Eller had a felony con-
viction, without reference specifically to the 1993 convic-
tion.
No. 06-1438 5
Constructive amendment of an indictment occurs
when the government or the district court broadens the
possible bases of conviction beyond those specified in the
indictment. See United States v. Murphy, 406 F.3d 857,
860 (7th Cir. 2005). Such broadening runs afoul of the
Grand Jury Clause of the Fifth Amendment, which limits
the available grounds for conviction to those specified
in the indictment. Stirone v. United States, 361 U.S. 212,
217 (1960) (“[A] court cannot permit a defendant to be
tried on charges that are not made in the indictment
against him.”); United States v. Jones, 418 F.3d 726, 729-
30 (7th Cir. 2005).
Haskins relies on this court’s decision in United States
v. Willoughby, 27 F.3d 263 (7th Cir. 1994) for his argu-
ment that the wording in his indictment required the
government to prove that he knew about Eller’s 1993
conviction. In Willoughby, we reversed a conviction where
the defendant’s indictment for using a firearm in relation
to a drug trafficking crime specified a particular drug
trafficking crime. There the indictment charged the
defendant with the use of a firearm “during and in rela-
tion to a drug trafficking crime, to wit: the distribution of
cocaine.” Id. at 266 (emphasis in original). At trial, the
government proved a connection between the defendant’s
use of a firearm and the possession of cocaine, but not
distribution, as specified in the indictment. Id. at 265.
We concluded that by specifying distribution in the
indictment, the government had narrowed the possible
bases for conviction to the use of a gun connected to
distribution. Thus, the cocaine possession proven at trial
was insufficient. Id. at 267.
Haskins maintains that his situation is similar: by
specifying Eller’s 1993 felony conviction, the government
obligated itself to prove at trial Haskins’ knowledge of
that specific conviction. We disagree. In Willoughby, the
6 No. 06-1438
phrase “to wit: the distribution of cocaine” followed di-
rectly and modified the crime with which the defendant
was charged: using a firearm in relation to a drug traf-
ficking crime. Here, however, the alleged narrowing
language comes on the heels of the description of Eller’s
felony, not the charge against Haskins. Haskins is
charged with selling a firearm to Eller “knowing and
having reasonable cause to believe that [Eller] had previ-
ously been convicted of a crime punishable by imprison-
ment for a term exceeding one year, to wit: Possession of
a Firearm by a Felon in 1993.” The statute itself requires
only that the defendant know the firearm recipient is a
felon. In Willoughby, however, the statute itself requires
proof of a drug trafficking crime, and the indictment
there specified a particular drug trafficking crime. Here,
however, the phrase “to wit” modifies Eller’s felony, not
Haskins’ knowledge of it. The indictment thus pro-
vides Haskins notice as to which felony of Eller’s the
government will rely on when proving that Haskins made
the sale knowing that Eller had a conviction. It does not
narrow the scope of Haskins’ knowledge about Eller’s
felony conviction. As such, the inclusion of Eller’s felony
conviction in the indictment is simply “superfluous back-
ground information,” United States v. Swanson, 394 F.3d
520, 525-26 (7th Cir. 2005), that the government need
not prove.
Haskins next claims that he is entitled to a new trial
based on the district court’s failure to instruct the jury
as to the meaning of the phrase “reasonable cause to
believe” in 18 U.S.C. § 922(d). Section 922(d) prohibits
selling a firearm “knowing or having reasonable cause to
believe” that the buyer is a felon. Before trial, the gov-
ernment proposed instructing the jury on “reasonable
cause to believe” using the Eleventh Circuit’s pattern
jury instruction, which defines the term as knowledge
of facts which “although not amounting to direct knowl-
No. 06-1438 7
edge, would cause a reasonable person, knowing the
same things, to reasonably conclude that the other per-
son was in fact a convicted felon.” But Haskins objected,
arguing that the phrase is not defined in the statute or
the Seventh Circuit pattern instructions. He also con-
tended in a written objection that the phrase is self-
explanatory. Although the district court was initially
inclined to give the instruction over Haskins’ objection,
it ultimately withdrew the instruction.
Based on this chain of events, the government contends
that Haskins has waived his argument about the in-
struction. We agree. Although Haskins claims we can
review the issue for plain error, counsel’s argument
against inclusion of the instruction amounts to waiver.
Unlike forfeiture (the failure to timely assert a right),
waiver is the intentional abandonment of a known right,
and precludes appellate review. See, e.g., United States v.
Olano, 507 U.S. 725, 733 (1993); United States v. Charles,
476 F.3d 492, 495 (7th Cir. 2007). Here Haskins knew he
had the right to request the instruction, and instead
argued against it. Accordingly, he has waived the issue.
See Repa v. Roadway Exp., Inc., 477 F.3d 938, 942
(7th Cir. 2007).
Alternatively, Haskins argued in his opening brief that
counsel’s decision to argue against defining “reasonable
cause to believe” amounts to ineffective assistance of
counsel. Because the record for such an argument is
not yet developed, however, Haskins wisely disavowed
this position at oral argument. See United States v. Harris,
394 F.3d 543, 557-58 (7th Cir. 2005) (detailing difficulties
attendant ineffective-assistance claims raised on direct
appeal and reiterating that “only the most patently
egregious of ineffective assistance claims are appropri-
ately brought on direct appeal”).
Haskins next contends that his conviction should be
reversed because there was insufficient evidence that he
8 No. 06-1438
knew Eller had been convicted of a felony. When consider-
ing challenges to the sufficiency of the evidence, we
consider the evidence in the light most favorable to the
government. E.g., United States v. Swan, 486 F.3d 260,
266 (7th Cir. 2007). Reversal is appropriate only when
the record contains no evidence, however weighed, from
which the jury could find the defendant guilty beyond
a reasonable doubt. United States v. Craft, 484 F.3d 922,
925 (7th Cir. 2007).
Here there are several pieces of evidence from which the
jury could have concluded beyond a reasonable doubt
that Haskins knew Eller had a felony conviction. First,
Eller testified that he told Haskins that he had a felony
conviction. Although Haskins argues that Eller’s testi-
mony was not credible, that was the jury’s call to make.
Swan, 486 F.3d at 266 (“[I]t is the exclusive function of
the jury to determine the credibility of the witnesses and
draw reasonable inferences.”) (internal quotations and
citation omitted); United States v. Radziszewski, 474 F.3d
480, 485 (7th Cir. 2007) (reiterating that appellate
court does not second-guess jury’s credibility determina-
tions). On top of Eller’s testimony is Haskins’ comment to
the ATF agents that he knew Eller was a felon “the first
time I saw him”—yet another piece of evidence from
which the jury could conclude that Haskins knew Eller’s
felony status.
Haskins’ conversations with Eller leading up to and
during the sale of the gun also provide a basis for the
jury to infer that Haskins knew Eller was a felon. On the
taped conversations, Haskins tells Eller that he has a gun
he is willing to sell him, and also tells him that he
(Haskins) will not have to go to the store for Eller. He
then tells Eller that he will go get him a gun any time, and
that if Eller needs to “throw” the gun he buys from
Haskins, he should just “throw that one,” and Haskins will
get him another. And when they meet for the gun sale,
No. 06-1438 9
Haskins again assures Eller that he will buy him a gun
any time.
The obvious inference from these conversations is
that Haskins knew Eller was ineligible to buy a gun for
himself. Particularly in light of Eller’s testimony that
he told Haskins about his conviction, the jury was en-
titled to conclude that the felony conviction was the rea-
son Haskins offered to procure a gun on Eller’s behalf.
In fact, during the sale of the gun, Eller referred to the
time when he could “get a pardon and shit,” and “be all
straight.” Haskins discounts this evidence, claiming that
Eller did not make this comment until after the transac-
tion was complete, and that Eller could have easily been
referring to a misdemeanor conviction. Although the
evidence may have supported such an inference, that is
apparently not the way the jury viewed it. In light of that
and the direct evidence in the form of Eller’s testimony
that he told Haskins about his conviction, we reject
Haskins’ challenge to the sufficiency of the evidence.
Haskins next maintains that his conviction should be
reversed because the government failed to offer evidence
proving that the gun had moved in interstate commerce.
Because Haskins failed to make this argument in the
district court, we review only for plain error. United States
v. Hendrix, 482 F.3d 962, 968 (7th Cir. 2007). Haskins
argues cursorily that if we conclude that § 922(d) should
be interpreted on an “ ‘as-applied’ basis with respect to
the inquiry of whether the firearm moved in interstate
commerce” then his conviction should be reversed for
insufficient evidence. Haskins fails, however, to provide
any meaningful argument as to why we would inter-
pret § 922(d) in the “as-applied” manner he proposes, and
he also stops short of contending that § 922(d) exceeds
Congress’ authority under the Commerce Clause.
By its terms, § 922(d) contains no requirement that the
government prove the firearm moved in interstate com-
10 No. 06-1438
merce. Thus, as a statutory matter, there is no basis
for the “as-applied” approach Haskins advances. Since
there is no statutory requirement, the failure of the
government to produce evidence that the gun traveled in
commerce would not amount to plain error unless the
statute itself exceeds Congress’ Commerce Clause author-
ity. But we decline to decide that question because
Haskins has not squarely raised the argument. Without
deciding the issue, we note that the sale of a firearm is
an inherently commercial activity, and thus falls within
the third category of activities which Congress is autho-
rized to regulate: “those activities having a substantial
relation to interstate commerce, i.e., those activities
that substantially affect interstate commerce.” United
States v. Lopez, 514 U.S. 549, 558-59 (1995) (internal
citations omitted). Unlike the Gun Free School Zones
Act of 1990 struck down by the court in Lopez, which
regulated the simple act of possession a firearm in a school
zone, see 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V),
§ 922(d) regulates the sale of a firearm, which is itself a
commercial activity. Congress thus has broad power to
regulate because the sale of firearms to felons is plainly
economic in nature.
Although this court has not dealt with a challenge to
§ 922(d)(1) since the Supreme Court invalidated the Gun
Free School Zones Act of 1990 in United States v. Lopez,
both the Eleventh Circuit and the Eighth Circuit have
considered the question and concluded that § 922(d)(1)
addresses an inherently commercial activity that,
even when completed in a completely intrastate trans-
action, may “ ‘through repetition elsewhere, substantially
affect . . . interstate commerce.’ ” United States v.
Monteleone, 77 F.3d 1086, 1092 (8th Cir. 1996) (quoting
Lopez, 514 U.S. at 567); see also United States v. Peters,
403 F.3d 1263, 1278 (11th Cir. 2005). Those circuits thus
held that because § 922(d)(1) deals with a commercial
No. 06-1438 11
activity amenable to the reach of Congress’ Commerce
Clause power, the statute is constitutional despite its
failure to include a requirement that the firearm trav-
eled in interstate commerce. Given Haskins’ argument, we
need not explicitly join those circuits today. Instead, we
refer Haskins to the wording of the statute to reject
his claim that the government was obligated to present
evidence that the Beretta traveled in interstate com-
merce. Because the statute contains no such require-
ment, the government’s failure to produce evidence that
the gun traveled in commerce does not amount to plain
error.
That leaves Haskins’ challenge to his sentence, which
he contends is unreasonable. In particular, Haskins al-
leges that the district court failed to properly weigh the
sentencing factors in 18 U.S.C. § 3553, and instead relied
on improper and irrelevant factors when sentencing
Haskins. The district court determined that Haskins
had an offense level of fourteen and a criminal history
category of I. The district court then sentenced Haskins
to eighteen months—the middle of the fifteen to twenty-
one-month range that Haskins concedes is appropriate.
A sentence within a properly calculated guideline range
is presumed reasonable. Rita v. United States, 127 S. Ct.
2456 (2007); United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005). Haskins maintains, however, that the
sentencing judge erroneously relied on improper and
irrelevant factors when determining his sentence. Haskins
first argues that the district court penalized him be-
cause he sold the gun to Eller in front of an elementary
school. Haskins was originally charged with violating
18 U.S.C. § 922 by possessing a firearm near a school zone,
a charge that was later dismissed. But the fact that
the charge was dismissed does not erase the facts sur-
rounding the sale. Haskins admitted the facts in the
presentence investigation report, which detailed his sale
12 No. 06-1438
to Eller while parked in front of Roosevelt High School.
As such, Haskins’ proximity to the school is a part of
the “nature and circumstances of the offense” that the
district court is obligated to consider. 18 U.S.C.
§ 3553(a)(1). That the district court took into account
the fact that Haskins sold the gun while parked in front
of a school hardly renders the resulting sentence in the
middle of the guideline range unreasonable. Cf. United
States v. Howard, 454 F.3d 700, 703-04 (7th Cir. 2006)
(upholding sentence above guideline range based on court’s
factual finding that defendant caused another’s heroin
overdose).
Haskins also argues that the district court turned
what should have been a mitigating consideration into
a reason to increase his sentence. In asking the court
to render a lower sentence, Haskins explained that he
himself had been shot by a felon fourteen years ago, but
the shooter had been acquitted at trial. Haskins now
claims that the district court did not give him an ade-
quate opportunity to explain why his status as a victim
of crime justified a lower sentence. The district court
acknowledged Haskins’ experience and concluded that it
did not provide grounds to reduce his sentence, pointing
out that as a prior victim of a felon with a weapon,
Haskins “should have known better” than to sell the
firearm to Eller. Haskins complains that the district court
erroneously used his status as a victim against him,
instead of using it to reduce his sentence, as Haskins
urged. That Haskins’ attempt to excuse his conduct did not
work out as expected hardly amounts to error on the
district court’s part. The court took the past crime against
Haskins into account and deemed it irrelevant to excus-
ing his culpability in the current crime. It was well
within the district court’s broad sentencing discretion to
conclude that Haskins’ status as a shooting victim did not
mitigate his culpability, and in fact, militated in the
other direction.
No. 06-1438 13
We are also unconvinced by Haskins’ claim that the
district court improperly weighed the § 3553(a) factors.
Haskins protests that the court did not adequately take
into account the fact that he was the primary caretaker
for his father, who suffered from colon cancer (and has
since died), as well as his grown son, whose mother died
shortly after he was born. But the district court did
consider these circumstances: it noted Haskins’ family
situation and explicitly stated that it was taking into
account the difficulty of raising a child alone. Given the
district court’s discussion, we are satisfied that the
court adequately explained its sentence in light of the
§ 3553(a) factors. See United States v. Dale, 498 F.3d 604,
611-12 (7th Cir. 2007). Although Haskins disagrees with
the district court’s assessment of the circumstances
surrounding the offense and the amount of weight to be
given to his family situation, that does not in any way
undermine the fact that the court gave “ ‘meaningful
consideration to the section 3553(a) factors,’ ” id. at 612
(quoting United States v. Williams, 425 F.3d 478, 480 (7th
Cir. 2005)), as required for us to uphold a properly cal-
culated sentence.
III.
For the foregoing reasons, we AFFIRM Haskins’ convic-
tion and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-26-07