United States v. Sanders, DeAngelo , 520 F.3d 699 ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1176
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEANGELO SANDERS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 CR 30200—Michael J. Reagan, Judge.
____________
ARGUED OCTOBER 26, 2007—DECIDED MARCH 21, 2008
____________
Before POSNER, FLAUM, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Defendant-Appellant DeAngelo
Sanders was indicted on the charges of possession of an
unregistered firearm in violation of 26 U.S.C. §§ 5845,
5861(d) and 5871, and possession of a firearm as a felon in
contravention of 18 U.S.C. §§ 922(g)(1) and 924(e)(2)(B)(i)
and (ii). Following a trial, a jury found Sanders guilty
on both counts. The district court sentenced Sanders to
295 months’ imprisonment on Count 1 and 120 months
on Count 2, to be served concurrently. Sanders now
appeals his conviction and sentence, and we affirm.
2 No. 07-1176
The charges arose out of an incident on December 6,
2005. As a result of work with an informant, the police
were aware that Amid Kennedy was going to be involved
in a proposed transaction involving firearms, which
initially was to involve the purchase of a gun but ulti-
mately was to involve the trading of a sawed-off shotgun
for a pistol. The police were present at the site of the
planned transaction to arrest the participants. Kennedy
drove to the site accompanied by Sanders in the front
passenger seat, who was acting as his bodyguard, and
J.W., a minor, in the backseat. Both Sanders and Kennedy
were felons. According to the trial testimony, as the
police stopped the vehicle, Sanders removed a shotgun
from his pants and placed it on the floor beneath him. The
police recovered the sawed-off shotgun with one round
chambered, from that location. In subsequent conversa-
tions with the police, Sanders admitted that he had ob-
tained the shotgun from his cousin and that they had
jointly sawed off the barrel.
In order to prove that Sanders knowingly possessed
a firearm, the government had to establish that Sanders
“consciously possessed what he knew to be a firearm.”
United States v. Jones, 222 F.3d 349, 352 (7th Cir. 2000). The
National Firearms Act, which prohibits the possession of
an unregistered firearm, defines “firearm” as including
a shotgun with an overall length of less than 26 inches or
a barrel length of less than 18 inches. 26 U.S.C. §§ 5861(d),
5845. Therefore, the government had to prove that Sanders
consciously possessed the shotgun and that he knew that
the shotgun had an overall length of less than 26 inches
or a barrel length of less than 18 inches. Jones, 222 F.3d at
352. Such knowledge can be inferred from evidence that
the defendant handled the shotgun if the appearance of
No. 07-1176 3
the shotgun would have revealed those characteristics. Id.
That evidence similarly can establish possession of a
firearm for the felon-in-possession charge, which addi-
tionally requires proof that the defendant previously
had been convicted of a crime punishable by imprison-
ment for a term exceeding one year, and that the posses-
sion of the firearm was in or affecting interstate com-
merce. In this appeal, Sanders does not contest that he is
a felon nor does he rebut the showing regarding inter-
state commerce.
Instead, Sanders maintains that the district court erred
in denying his motion for judgment of acquittal because
the evidence was insufficient to establish that he knew
the shotgun was less than 26 inches in length or that the
barrel was less than 18 inches. We note initially that
Sanders raised his motion for acquittal at the close of the
government’s case, but did not subsequently renew that
motion. Sanders argues that the issue is nonetheless
preserved because the defense rested at the close of the
government’s case, and therefore that the motion for
acquittal was effectively made at the close of all evidence.
Accordingly, Sanders argues that we should review the
issue de novo and determine whether, after viewing the
evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. We
need not consider whether the motion was sufficient to
preserve the issue or whether the plain error standard
should instead apply, because even under the standard
advocated by Sanders, his claim cannot succeed. See United
States v. Sachsenmaier, 491 F.3d 680, 683 (7th Cir. 2007);
United States v. DeLeon, 247 F.3d 593, 596 n.1 (5th Cir. 2001).
Sanders focuses his sufficiency of the evidence argument
on the overall length of the shotgun, arguing that the
4 No. 07-1176
overall length of the shotgun was 24 inches and therefore
was only 2 inches under the overall length requirements
of a legal shotgun. He argues that such a small discrepancy
would not be noticeable, and therefore that knowledge
of the inadequate shotgun length cannot be inferred.
Sanders fails to recognize, however, that the barrel length
of the shotgun was significantly less than the legal length.
The legal length of a shotgun barrel is 18 inches, and the
sawed-off shotgun possessed by Sanders was only 11 and
7/16 inches long. That is more than one-third shorter
than the legal length, and is a large enough difference
that it would be obvious to someone who handled it that
the barrel was not 18 inches long. That is the only knowl-
edge required for a jury to find a violation of the statute.
The jury was presented with evidence that Sanders
handled the gun, including Sanders’ own acknowledg-
ment and the testimony that he had the shotgun in his
possession in the vehicle and placed it on the floor at the
time of the arrest. That would be enough for a jury to infer
the requisite knowledge, but we have much more here.
Sanders also admitted that he and his cousin sawed off the
shotgun. That is compelling evidence that Sanders had
knowledge that the shotgun was shorter than the legal
limit, as Sanders himself modified the gun to achieve
that result. The district court properly denied the motion
for judgment of acquittal.
Sanders next asserts that the district court erred in its
response to a question from the jury during deliberation.
Regarding the charge of possession of an unregistered
firearm, the jury was instructed that the government had
to prove “that the defendant knew that the firearm pos-
sessed the characteristic of an overall length of less than 26
inches or a barrel less than 18 inches in length.” The jury
No. 07-1176 5
sent the district court the following question on its sec-
ond day of deliberation:
Number one, Judge’s instruction to us. The defendant
is charged in Count 1 of the indictment with the offense
of possession of a shotgun having a barrel length of
11 and a quarter inches and overall length of 24 and a
half inches. Number 2, Count I states, second, the
defendant knew that the firearm possessed the charac-
teristics of an overall length of less than 26 inches or a
barrel length less than 18 inches in length. We have
several interpretations of the second statement, and
need a clarification. Question[:] Does the defendant
need to know the characteristics of a sawed off shot-
gun, or does the defendant need to know the exact
measurements of a sawed off shotgun?
That question illustrated confusion in that it focused on the
wording in the indictment, which charged him with
possession of a shotgun with those exact measurements but
which was not to be considered as evidence, and the jury
instruction which required only knowledge that the
shotgun or barrel was shorter than the legal length. The
district court ultimately chose to respond with a state-
ment that merely reiterated that the indictment is not
evidence, and that any evidence that the jury should
consider in the case should come from the witnesses,
stipulations, or exhibits, not the indictment. Sanders
argues that the answer given by the district court “did not
adequately clarify that it was the government’s burden to
prove Mr. Sanders knew the length of the shotgun.” That
is in fact an incorrect statement of the law. There is no
requirement that a defendant know the length of the
shotgun; rather, the government need only prove that the
defendant knew the shotgun was less than the legal overall
6 No. 07-1176
limit or less than the legal limit for the barrel. See Jones,
222 F.3d at 352; United States v. Edwards, 90 F.3d 199, 202-04
(7th Cir. 1996). The court’s response to the jury question
was to reiterate its earlier admonition that the jury not
consider the indictment as evidence in its deliberations.
Sanders presents no argument that the response was an
incorrect statement of the law or otherwise misleading,
and therefore cannot succeed on this claim.
More fundamentally, Sanders has waived this argument,
because rather than opposing that particular response,
Sanders agreed to it and in fact at times argued for it.
Unlike forfeiture, in which a defendant fails to make a
timely assertion of a right, which can be reviewed for
plain error, a waiver involves the intentional relinquish-
ment of a known right and is unreviewable. United States
v. Hamilton, 499 F.3d 734, 735 (7th Cir. 2007). Upon receiv-
ing the question from the jury, the court expressed its
concern that the jury appeared to be improperly con-
sidering the indictment as evidence, and proposed that
it inform the jury that the indictment is not evidence. The
court was also concerned as to the vagueness of the
“possess the characteristic” language in the instruction,
and sought to inform the jury that it was to determine
whether the defendant knew the shotgun had an overall
length less than 26 inches or a barrel length less than
18 inches. Counsel for Sanders declared “I would have
no objection to the jury being reminded that the indict-
ment is not evidence,” and stated that Sanders would
prefer that to any revision of the instruction already given
to the jury. Subsequently, counsel for Sanders expressed
doubt that the jury was viewing the indictment as evi-
dence, but stated that “[i]f they are, a reminder to them that
the indictment is not evidence should be sufficient to
No. 07-1176 7
address that concern.” After a final discussion as to
whether the jury could be considering the indictment as
evidence, defense counsel stated: “If they are by some
means viewing the indictment as evidence, which the
reference to sawed off would seem to undercut, then
repeating that instruction rather than giving a revised
instruction is what we’re asking for.” The court then
decided to simply repeat the admonition that the indict-
ment is not evidence, and chose not to give any further
instructions as to the government’s burden or the deter-
minations as to length that the jury had to make. Sanders
cannot now argue that the court erred in giving an instruc-
tion that his defense counsel explicitly approved. Id. at
736. Although his counsel expressed some doubts as to
whether the jury misunderstood the proper use of the
indictment, his counsel agreed throughout the discussion
that an instruction that the indictment was not evidence
would be acceptable to him. Therefore, this challenge is
waived. Id.
Finally, Sanders argues that the district court misunder-
stood its role at sentencing. Counsel for Sanders made an
elaborate argument for imposing only the mandatory
minimum sentence by comparing Sanders’ possible
sentence with the sentences given to the war criminals
sentenced at Nuremberg. In addressing that argument,
the district court noted that the judges at Nuremberg
“weren’t cabined in by the statutes passed by Congress
or the advisory guidelines.” Sanders seizes upon the use of
the term “cabined in” as indicating that the Guidelines
were given more than advisory status at the disposition.
That is belied by the district court’s subsequent, express
statement indicating that it understood its role and that
the word “cabined” was not the proper one: “Perhaps
8 No. 07-1176
I shouldn’t use the word cabined in. I sentence under
18 U.S.C. 3553, but I look to the guidelines in their ad-
visory capacity.” That is a proper statement of the court’s
role. United States v. Ross, 501 F.3d 851, 853 (7th Cir. 2007).
Sanders fares no better in his final claim that the court
failed to give an adequate statement of reasons under
18 U.S.C. § 3553(a) and imposed a sentence greater than
necessary to meet the purposes of sentencing. The dis-
trict court discussed at length a number of the § 3553(a)
factors, and gave detailed reasons for its conclusion as to
the appropriate sentence. There is no need for the court
to discuss each § 3553(a) factor individually, as long as it
is clear from the court’s opinion that it considered the
factors in determining the appropriate sentence. United
States v. Williams, 425 F.3d 478, 480 (7th Cir. 2005). The
court’s determination that a sentence in the middle of
the Guidelines range was appropriate is logical and
consistent with the § 3553(a) factors. See id. at 481. Accord-
ingly, the conviction and sentence are AFFIRMED.
USCA-02-C-0072—3-21-08