United States v. Anthony Loren Gardner ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1731
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY LOREN GARDNER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 17-cr-40054 — Sara Darrow, Chief Judge.
____________________
ARGUED MAY 21, 2019 — DECIDED SEPTEMBER 30, 2019
____________________
Before FLAUM, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Anthony Gardner was arrested after
firing a gun at two vehicles thought to be driven by rival
gang members. He pleaded guilty to possessing a firearm as
a felon. The district judge imposed an above-Guidelines
sentence based in part on Gardner’s use of violence in a
prior burglary.
2 No. 18-1731
On appeal Gardner argues procedural error. He insists
that the so-called “categorical approach,” with all its doctri-
nal arcana and limitations, applies when a judge exercises
Booker discretion to impose an above-Guidelines sentence
based on a defendant’s aggravating conduct in a prior crime.
Not so. The sentencing judge may consider aggravating
circumstances in a defendant’s criminal record without the
constraints imposed by the categorical approach that usually
applies to statutory sentencing enhancements and the de-
termination of offense-level increases and criminal-history
points under the Sentencing Guidelines. Gardner also argues
that the judge inadequately addressed his mental-health
challenges and relied on inaccurate information in the
presentence report. These arguments are waived and forfeit-
ed, respectively, and the forfeited argument does not involve
a plain error. We affirm.
I. Background
On April 22, 2017, Gardner was with his friend Davion
Gary in front of Gary’s house in East Moline, Illinois, when
he spotted a silver Jeep circling the block. Gardner was
suspicious because his friend was having problems with a
rival street gang. The two men went inside Gary’s house, but
they soon saw the Jeep circle the block once more. Almost
immediately Gardner heard gunshots. At that point he went
outside with a semiautomatic handgun and fired shots at the
Jeep.
Moments later a second vehicle stopped at a stop sign
after passing Gary’s house. Gardner wasn’t sure if this
vehicle was associated with the Jeep, but he didn’t wait to
find out. He fired at the second vehicle and then jumped into
a car driven by his friend Jennifer Winterbottom. When
No. 18-1731 3
Gardner saw the second vehicle in the side mirror, he as-
sumed it was following him. He got out of Winterbottom’s
car and again fired at the vehicle.
Officers responding to the shooting stopped Winter-
bottom’s car, arrested Gardner, and seized a loaded hand-
gun along with ammunition. When the officers told Gardner
that the driver of the second vehicle wasn’t involved with
the rival gang, he remarked, “Thank God I wasn’t aiming at
him.”
Gardner was indicted for possessing a firearm as a felon.
See 18 U.S.C. § 922(g)(1). While in pretrial custody at the
Rock Island County Jail, he engaged in additional violent
behavior. Gardner
 spat in the direction of a guard;
 threatened to strike any guard that entered his cell;
 sent a fellow inmate to the emergency room with a
punch to the face;
 confronted an inmate eating lunch and “started
swinging his fists”; and
 snuck into an inmate’s cell and began punching and
kicking him.
Because of this conduct, the U.S. Marshal’s Service eventual-
ly transferred Gardner to the Knox County Jail.
While awaiting trial Gardner underwent a telephonic
psychological evaluation and was diagnosed with major
depression, obsessive-compulsive disorder, and chronic
posttraumatic stress syndrome. He eventually pleaded guilty
and his attorney referred him for a second mental-health
evaluation. Dr. Kirk Witherspoon, a clinical psychologist,
4 No. 18-1731
noted Gardner’s depression and past suicide attempts. He
found that Gardner “appears to [have] borderline personali-
ty disorder traits, i.e., a propensity toward marked impul-
sivity and reactivity without sufficient forethought or moral
compunction.”
The case proceeded to sentencing in March 2018. The
§ 922(g) offense carries a Guidelines base offense level of 14.
See U.S.S.G. § 2K2.1(a)(6). But the base offense level increases
if the defendant has one or more convictions for a “crime of
violence” or a controlled substance offense. Id. § 2K2.1(a)(1)–
(4). Gardner has a lengthy criminal record, including multi-
ple burglaries. Until fairly recently, burglary was among the
offenses listed in the Guidelines’ definition of “crime of
violence.” In August 2016, however, the Sentencing Com-
mission removed burglary from the definition. See U.S.S.G.
app. C, AMEND. 798, at 118 (Supp. Nov. 1, 2018). The Com-
mission cited several reasons for the change, including
“several recent studies” showing that “most burglaries do
not involve physical violence.” Id. at 122.
Although the Commission removed burglary from the
definition of crime of violence, it added this commentary:
There may be cases in which a burglary in-
volves violence[] but does not qualify as a
“crime of violence” as defined in § 4B1.2(a)
and, as a result, the defendant does not receive
a higher offense level or higher Criminal Histo-
ry Category that would have applied if the
burglary qualified as a “crime of violence.” In
such a case, an upward departure may be ap-
propriate.
No. 18-1731 5
Id. at 119; U.S.S.G. § 4B1.2 cmt. n.4.
Accordingly, Gardner’s presentence report (“PSR”) be-
gan with a base offense level of 14, added six levels for other
specific offense characteristics, and subtracted three levels
for acceptance of responsibility, yielding a total offense level
of 17. Combined with a Criminal History Category of IV,
Gardner’s Guidelines sentencing range was 51 to 63 months.
The PSR added, however, that Gardner’s 2011 residential
burglary involved violence, which may warrant the judge’s
consideration of an above-Guidelines sentence.
Gardner’s attorney agreed with the range calculation but
objected to the PSR’s suggestion that the judge consider an
above-Guidelines sentence. So the government presented
testimony from former Rock Island County Investigator
Jason Patterson, who had interviewed the victim of the 2011
burglary. Patterson explained that the victim described a
break-in at his home by two masked men in which both
burglars struck him, and one used a blunt object to hit him
in the head.
Based on this testimony and other information in the
PSR, the judge determined that the burglary involved vio-
lence. She then heard arguments about the sentencing
factors in 18 U.S.C. § 3553(a). The government asked for an
above-Guidelines sentence of 92 months. Gardner’s attorney
argued for a sentence within the Guidelines range. Gardner
addressed the court and said he was ready to change.
The judge then painstakingly weighed the aggravating
and mitigating factors under § 3553(a). Regarding the 2011
residential burglary, the judge expressed her sense that “it
should be treated the way that it used to be by the
6 No. 18-1731
[G]uidelines and factored into [Gardner’s] base offense level,
and I think that’s a better reflection of your criminal histo-
ry[,]” which would correspond to “a [G]uideline[s] [range]
of 92 to 115 months.” She went on to discuss the alarming
circumstances of the offense, Gardner’s serious criminal
history, his mental-health issues, and his aggressive behav-
ior in pretrial custody. In the end, the judge settled on an
above-Guidelines sentence of 100 months in prison.
II. Discussion
This appeal raises claims of procedural error, so our re-
view is de novo. United States v. Kuczora, 910 F.3d 904, 907
(7th Cir. 2018).
Gardner first argues that the judge impermissibly ap-
plied a noncategorical approach when evaluating his 2011
residential burglary. Rather than limiting her analysis to the
small universe of materials authorized by Shepard v. United
States, 544 U.S. 13 (2005), and Taylor v. United States, 495 U.S.
575 (1990), the judge relied on information in the PSR and
testimony from Investigator Patterson to conclude that the
2011 burglary involved violence against the victim. Gardner
challenges the use of this noncategorical, fact-specific analy-
sis, which he says led the judge to classify his 2011 burglary
as a crime of violence and increase his base offense level
accordingly.
But the judge did not increase Gardner’s base offense lev-
el based on the 2011 burglary. Rather, she accepted, without
objection, the PSR’s Guidelines calculations and the resulting
sentencing range. She then moved on to determine how
much weight the 2011 burglary deserved in connection with
her exercise of discretion in evaluating the § 3553(a) factors.
No. 18-1731 7
Gardner insists that the judge recalculated the Guidelines
range based on the commentary contained in the new Appli-
cation Note 4 to § 4B1.2, which accompanied the removal of
burglary from the crime-of-violence definition. To be sure,
the judge said that Gardner’s 2011 burglary “should be
treated the way that it used to be by the [G]uidelines and
factored into [Gardner’s] base offense level,” which would
have produced a Guidelines range of 92 to 115 months. This,
in the judge’s view, would more accurately capture his
dangerousness.
But that doesn’t mean the judge calculated a new Guide-
lines range. She simply explained her decision to impose an
above-Guidelines sentence by analogy to the old Guidelines.
See United States v. Griffith, 913 F.3d 683, 688 (7th Cir. 2019)
(“In context, however, it is clear that the court was not …
correct[ing] the [G]uidelines calculation but rather was
expressing disagreement with the properly calculated
[G]uidelines sentence.”). The sentencing transcript shows
that everyone understood this point. Indeed, Gardner’s
attorney repeatedly objected to using the 2011 burglary
conviction as a “basis to vary upward.”
Still, we take this opportunity to reiterate two points
about sentencing methodology. First, we have repeatedly
explained that the concept of a “departure” in Guidelines
sentencing is “obsolete” and “beside the point” after United
States v. Booker, 543 U.S. 220 (2005). United States v. Walker,
447 F.3d 999, 1006 (7th Cir. 2006). Discretion has replaced
formal departure analysis in post-Booker sentencing, and the
rules that apply to offense-level increases and criminal-
history points on the sentencing grid do not apply to the
judge’s assessment of the § 3553(a) factors. Second, it’s “not
8 No. 18-1731
necessary for the court to analogize to the [G]uidelines when
explaining [a] … variance” from the Guidelines range.
Griffith, 913 F.3d at 689. “[A]s long as a judge uses a properly
calculated Guidelines range as a starting point, [the judge]
may explain a decision to vary from that range with refer-
ence to the statutory factors alone.” Kuczora, 910 F.3d at 908.
Next, Gardner argues that the judge failed to adequately
address his mental-health challenges. This argument is
waived. In United States v. Garcia-Segura, we encouraged
district judges to specifically inquire whether the defendant
is satisfied that the court has addressed all arguments in
mitigation. If the answer is “yes,” “a later challenge for
failure to address a principal mitigation argument … [is]
waived.” 717 F.3d 566, 569 (7th Cir. 2013); accord United States
v. Rosales, 813 F.3d 634, 638 (7th Cir. 2016). That’s what
happened here. The judge specifically asked Gardner’s
counsel if she had adequately addressed all of his principal
arguments in mitigation, and he said, “Yes.” The judge also
asked if counsel wanted any further elaboration of the
sentence, and counsel responded, “No, thank you.” That’s a
waiver. See United States v. Waldrip, 859 F.3d 446, 449 (7th Cir.
2017).
Finally, Gardner contends that the judge relied on “unre-
liable reporting” in the PSR about his conduct in pretrial
custody. Plain-error review applies because Gardner did not
object to the information in the PSR when given an oppor-
tunity to do so. See United States v. Corona-Gonzalez, 628 F.3d
336, 340 (7th Cir. 2010). So he must show a “clear” or “obvi-
ous” error that affected his substantial rights. See United
States v. Pankow, 884 F.3d 785, 791 (7th Cir. 2018).
No. 18-1731 9
He hasn’t come close to doing so. Gardner criticizes the
PSR’s “scant detail,” but he never fills in the alleged gaps.
He quibbles about the number of times he was actually cited
for misconduct in the jail, but the judge didn’t rely on a tally.
Rather, she merely described his conduct and noted that it
was consistent with someone who has a history of violent
outbursts. He also quarrels about the nuances of the judge’s
characterizations of his behavior. We see no error, let alone
plain error, which is one that is clear, not “subtle, arcane, [or]
debatable.” United States v. Ramirez, 783 F.3d 687, 694 (7th
Cir. 2015).
AFFIRMED