NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 13, 2012
Decided July 2, 2012
Before
RICHARD D. CUDAHY, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐1220 Appeal from the United States District
Court for the Northern District of Indiana,
UNITED STATES OF AMERICA, South Bend Division.
Plaintiff‐Appellee,
No. 3:11cr10‐001
v.
Jon E. DeGuilio,
JAMES KEVIN TAYLOR, Judge.
Defendant‐Appellant.
O R D E R
James Taylor pleaded guilty to two counts of falsifying a Firearms Transaction
Record,
18 U.S.C. § 922(a)(6), and the district court sentenced him to a total of 70 months’
imprisonment, the bottom of his guidelines range. In calculating that range, the court found
that Taylor used a gun to commit another crime—felony battery by pistol‐whipping his
half‐brother—and applied a cross‐reference, U.S.S.G. § 2K2.1(c)(1)(A), to the offense
guideline for aggravated assault, id. § 2A2.2. Taylor argues on appeal that because the
battery is not alleged in the § 922(a)(6) indictment, the court applied the cross‐reference in
violation of the Indictment Clause of the Fifth Amendment. But that clause does not require
the government to charge sentencing factors in the indictment. Accordingly, we affirm the
judgment of the district court.
No. 12‐1220 Page 2
Taylor was using heroin on a daily basis when he twice bought firearms from
Midwest Gun Exchange in Mishawaka, Indiana, in March 2009. Each time he represented
on a Firearms Transaction Record, ATF Form 4473, that he was not an unlawful user of
controlled substances, which enabled him to buy a semiautomatic pistol and a rifle. Later
that year Taylor was involved in a dispute with his half‐brother; according to the
presentence investigation report, Taylor hit his half‐brother in the head with a
gun—thought to be a semiautomatic pistol—and then held the gun to his head. As a result,
state prosecutors charged Taylor with unlawfully carrying a gun, IND. CODE § 35‐47‐2‐1, and
battery, id. § 35‐42‐2‐1, both misdemeanors. Federal investigators interviewed Taylor in
August 2010 (the reason is not disclosed in the record), and he admitted having used heroin
regularly for three years. Taylor also told the investigators that he had purchased ten guns
from Midwest Gun Exchange, which led the investigators to the false forms. Taylor was
charged in a two‐count indictment and pleaded guilty without the benefit of a plea
agreement.
A probation officer calculated Taylor’s total offense level at 12, which combined with
a criminal history category of III, yielded an imprisonment range of 15 to 21 months. The
probation officer considered applying a 4‐level increase to Taylor’s offense level under
U.S.S.G. § 2K2.1(b)(6)(B) for the use or possession of “any firearm or ammunition in
connection with another felony offense.” But the probation officer decided that this upward
adjustment did not apply because state prosecutors had charged Taylor only with
misdemeanors based on the incident with his half‐brother. The government objected and
pointed out that Application Note 14(C) to § 2K2.1 provides that the increase for using a
gun in connection with another felony offense applies “regardless of whether a criminal
charge was brought, or a conviction obtained.” Taylor opposed applying the adjustment on
multiple grounds, including that the application note violates the Fifth and Sixth
Amendments because, he contended, “the elements of ‘another felony’ [must be] charged
and proved beyond a reasonable doubt in a proceeding which affords defendant the full
spectrum of rights and safeguards.” After considering the parties’ competing views, the
district court reasoned that if subsection (b)(6)(B) applied, so too would the cross‐reference
found in § 2K2.1(c)(1)(A). That subsection provides that if a defendant used a firearm in
connection with another offense—even if not a felony—the court must apply § 2X1.1 with
respect to the other offense if doing so would result in a greater offense level. And § 2X1.1(a)
directs the sentencing court to apply the “base offense level from the guideline for the
substantive offense, plus any adjustments from such guideline for any intended offense
conduct that can be established with reasonable certainty.” See United States v. Samuels,
521
F.3d 804, 808, 815 (7th Cir. 2008) (upholding use of § 2K2.1(c)(1)(A)’s cross‐reference to
apply offense guideline for aggravated assault to defendant convicted of aiding and
abetting possession of firearm by felon).
No. 12‐1220 Page 3
The district court then received evidence on the application of the cross‐reference.
After five witnesses testified, including Taylor and his half‐brother, the court issued its
tentative guidelines rulings, giving the parties an opportunity to object. The court
concluded that it was proper to apply the upward adjustment or to use the cross‐reference
to the aggravated‐assault guideline, U.S.S.G. § 2A2.2, and ordered the probation officer to
determine which approach would yield the higher offense level. The probation officer
calculated Taylor’s offense level under the aggravated‐assault guideline at 25, which was
higher than the level under the firearm guideline. The reason for the difference is that the
aggravated‐assault guideline includes a 4‐level increase for using a dangerous weapon,
see id. § 2A2.2(b)(2)(B), and a 5‐level increase for causing serious bodily injury to another, see
id. § 2A2.2(b)(3)(B). Taylor’s imprisonment range was now 70 to 87 months. The court
rejected Taylor’s objections to the revised calculations and sentenced him at the low end of
that range.
On appeal Taylor’s sole contention is that applying the cross‐reference in
§ 2K2.1(c)(1)(A)—and thus basing his guidelines range on the aggravated assault—violated
the Indictment Clause of the Fifth Amendment because the battery is not alleged in the
§ 922(a)(6) indictment. This argument, coming seven years after United States v. Booker,
543
U.S. 220 (2005), is frivolous. Taylor relies on Apprendi v. New Jersey,
530 U.S. 466, 490 (2000).
That decision holds that any fact, other than a prior conviction, which increases a statutory
maximum (and with it the defendant’s sentence) must be presented to a jury and proved
beyond a reasonable doubt. But Taylor was sentenced below the 10‐year statutory
maximum. See
18 U.S.C. § 924(a)(2). His sentence was affected by the application of the
sentencing guidelines, but Booker put to rest any contention that guidelines adjustments
must be alleged in an indictment or proved beyond a reasonable doubt. See, e.g., United
States v. Waltower,
643 F.3d 572, 577 (7th Cir. 2011); United States v. Krieger,
628 F.3d 857, 863
(7th Cir. 2010); United States v. Ashqar,
582 F.3d 819, 824 (7th Cir. 2009). Even before
Apprendi, the Supreme Court had made clear that an indictment must set forth each element
of the charged crime, but not factors relevant only to the sentencing. Almendarez‐Torres v.
United States,
523 U.S. 224, 228 (1998); see Julian v. Bartley,
495 F.3d 487, 496–97 (7th Cir.
2007). That rule was not altered by Apprendi or Booker; the Indictment Clause does not
require that factors affecting the guidelines range be alleged in the indictment. United States
v. Abdulahi,
523 F.3d 757, 760–61 (7th Cir. 2008) (concluding that Indictment Clause does not
require that drug quantity be alleged in indictment); United States v. Thomas,
446 F.3d 1348,
1355 (11th Cir. 2006) (concluding that Indictment Clause does not require that facts used to
increase defendant’s guidelines range be found by grand jury and charged in indictment).
AFFIRMED.
