United States v. Michael Price ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2490
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL PRICE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18CR00059-001 — James R. Sweeney II, Judge.
____________________
ARGUED OCTOBER 25, 2021 — DECIDED NOVEMBER 1, 2021
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Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. Believing that Carissa Sam-
mons had stolen some of his girlfriend’s jewelry, Michael
Price called the house in Indianapolis where Sammons was
staying and announced that he was coming to get the jewelry
back—by force, if necessary. When Price tried to gain en-
trance, Brian Butler closed the front door. Price fired a re-
volver several times through the door, hiTing Edwin Smith in
the leg. Price dropped the revolver and fled. When police
2 No. 20-2490
caught up with his truck, they found a Taurus pistol. Price has
pleaded guilty to the crime of possessing a gun, which his fel-
ony record made unlawful. 18 U.S.C. §922(g)(1). Although the
indictment does not identify the gun or guns that Price un-
lawfully possessed, the factual basis proffered in support of
the plea identifies possessing the Taurus pistol as the crime of
conviction. The court sentenced Price to 110 months in prison.
The presentence report recommended that the judge add
four offense levels under U.S.S.G. §2K2.1(b)(6)(B), which ap-
plies when the defendant “used or possessed any firearm or
ammunition in connection with another felony offense”. The
PSR observed that shooting into an occupied house amounts
to the state offense of criminal recklessness, Ind. Code §35-42-
2-2(b)(1)(A), if not something more serious. Unfortunately,
the report did not quote §2K2.1(b)(6)(B) accurately. Instead it
paraphrased the rule as one that adds four levels if “[t]he de-
fendant possessed the firearm while commiTing another fel-
ony offense.”
At sentencing the judge quoted from that paraphrase ra-
ther than from §2K2.1(b)(6)(B). Yet the two concepts differ. An
enhancement for a felony commiTed “while possessing” a
firearm would apply if Price had left the Taurus in a bank
vault and arrived at the house with a baseball bat or a knife.
The crime of possession continues as long as a gun is under a
felon’s control; it need not be in his hand (or truck). But under
§2K2.1(b)(6)(B) the enhancement is appropriate only if the
firearm was “used or possessed … in connection with another
felony offense”—in other words, only if the firearm was in-
volved in, or contributed to, the other felony. See, e.g., United
States v. LePage, 477 F.3d 485, 489 (7th Cir. 2007).
No. 20-2490 3
The district judge did not find that the condition in the
Guideline, as opposed to the paraphrase, had been satisfied.
It might have been satisfied. Perhaps the presence of the Tau-
rus in the truck made Price bolder, because it served as a
backup or a means to facilitate escape. But the judge did not
find that the Taurus played either role.
The judge did mention that, by possessing the revolver
long enough to shoot it, Price independently violated
§922(g)(1). And the Assistant United States ATorney observed
that the indictment is broad enough to encompass the re-
volver—which three witnesses say Price brought to the door,
though Price says he obtained during a struggle with Butler.
Still, the crime of conviction entailed the pistol but not the re-
volver, given the factual basis admiTed in the plea colloquy.
The prosecutor could have insisted that Price plead guilty to
possessing the revolver (or gone to trial if Price balked), and
then the enhancement under §2K2.1(b)(6)(B) would have been
a no-brainer. But that’s not what happened.
The district court’s failure to make an essential finding
means that we must remand. The United States has not ar-
gued that any error was harmless. It might be thought harm-
less—after all, a judge is entitled to impose sentence based on
what the defendant actually did, whether or not a particular
enhancement applies. That’s one upshot of United States v.
Booker, 543 U.S. 220 (2005). We have encouraged district
judges to say on the record that the parties’ dispute about a
particular issue under the Guidelines does not maTer to the
sentence. See, e.g., United States v. White, 883 F.3d 983, 987 (7th
Cir. 2018). The district judge could have said this, given the
fact that Price commiTed a separate federal felony by pos-
sessing and shooting the revolver. But the judge did not
4 No. 20-2490
declare that the sentence is independent of §2K2.1(b)(6)(B), so
we could not find the error to be harmless even if the United
States had made a harmless-error argument.
One final observation may avoid a needless dispute on re-
mand. Price contends that he shot the revolver in self defense
and so did not commit the crime of criminal recklessness. That
argument is a non-starter—though not because self defense is
a defense rather than an element of the state crime. If self de-
fense could be established, then the shooting would not be a
crime, and only “another felony offense” supports an en-
hancement under §2K2.1(b)(6)(B). See United States v. Mejia,
859 F.3d 475, 479 (7th Cir. 2017). The problem with using self
defense as a means to avoid the enhancement is that Indiana
does not permit the initial aggressor to invoke self defense,
even if a fracas develops in which the aggressor is thrown on
the defensive. See Ind. Code §35-41-3-2(g)(3); Wolf v. State, 76
N.E.3d 911 (Ind. App. 2017). It is undisputed that Price was
the aggressor at the house where Sammons was staying; the
district court therefore need not consider Price’s argument
about self defense.
The judgment is vacated, and the case is remanded for
proceedings consistent with this opinion.