United States v. Mario Prado ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1824
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO PRADO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-cr-00607-1 — Sharon Johnson Coleman, Judge.
____________________
ARGUED JANUARY 14, 2022 — DECIDED JULY 29, 2022
____________________
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. On July 25, 2019, Mario Prado was
charged by a superseding indictment with unlawful posses-
sion of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1),
and possession with intent to distribute a controlled sub-
stance, in violation of 21 U.S.C. § 841(a)(1). The indictment fol-
lowed a state search warrant of Prado’s home, in which, as
relevant here, the officers recovered nine firearms, including
five that were stolen, one with an obliterated serial number,
2 No. 21-1824
and one with no serial number. Prado pled guilty to Count
One, possession of a firearm as a felon in violation of
§ 922(g)(1), pursuant to a written plea agreement in which he
retained his right to appeal his sentence.
I.
In determining the appropriate sentence, the district court
calculated the initial base offense level as 20, which was lower
than the base offense level of 22 recommended by the
Probation Office in the Presentence Investigation Report
(PSR) because, as the parties agreed, Prado’s prior conviction
for mob action by force was not a crime of violence. The
district court then proceeded to consider enhancements,
applying a four-level enhancement under U.S.S.G. §
2K2.1(b)(1)(B) because the offense involved between 8 and 24
firearms. The court added a two-level enhancement pursuant
to subsection (A) of U.S.S.G. § 2K2.1(b)(4) because Prado
possessed a stolen firearm and a four-level enhancement
under subsection (B) of that provision because Prado
possessed a firearm with an obliterated serial number. The
PSR had recommended the four-level enhancement for the
obliterated serial number, but had omitted the two-level
enhancement for possession of a stolen firearm, reasoning
that § 2K2.1(b)(4) allowed application of only one of the
enhancements in its subsections—either for a stolen firearm
or an enhancement for an obliterated serial number—but not
both. As we will discuss, Prado challenges that double
enhancement by the district court in this appeal, arguing that
the PSR, not the district court, properly interpreted the
language of § 2K2.1(b)(4). With those enhancements, the
offense level was therefore 30. A “hanging paragraph” in §
2K2.1(b) provided that the cumulative offense level from the
No. 21-1824 3
application of § 2K2.1(b)(1)–(4) may not exceed 29, and
therefore the impact of those enhancements on the offense
level reverted to 29.
Following the imposition of those enhancements, the dis-
trict court applied a four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B) because the defendant used or possessed the
firearms in connection with another felony offense, and de-
ducted three levels for Prado’s acceptance of responsibility
pursuant to U.S.S.G. §§ 3E1.1(a) and 3E1.1(b), yielding a total
offense level of 30. Although the PSR had determined that
Prado was in criminal history category V, the court held that
criminal history category IV was the correct category. That
yielded a guideline range of 135 to 168 months, but the statu-
tory maximum for the offense was below that range, at 120
months. After analyzing the relevant factors under 18 U.S.C.
§ 3553(a) and the arguments in mitigation, the court imposed
a below-guideline sentence of 108 months’ imprisonment.
Prado now appeals that sentence.
II.
Prado initially argued that the district court failed to
properly calculate his guideline range, raising two challenges
to the calculation. First, he maintained that the district court
erred in determining that his offense level was 30, arguing
that the hanging paragraph in U.S.S.G. § 2K2.1(b) caps a de-
fendant’s offense level at 29. Following the government’s re-
sponse, however, Prado conceded that the court’s calculation
of the offense level did not run afoul of the cap in the hanging
paragraph of § 2K2.1(b), and therefore we need not address
that challenge.
4 No. 21-1824
His remaining challenge is that the court erred in impos-
ing both a two-level enhancement because a firearm was sto-
len and a four-level enhancement because the serial number
on a firearm was altered or obliterated. We review a challenge
to the court’s calculation of the guideline’s range de novo.
United States v. Griffith, 913 F.3d 683, 687 (7th Cir. 2019).
Section 2K2.1(b)(4) provides:
(b) Specific Offense Characteristics
(4) If any firearm (A) was stolen, increase
by 2 levels; or (B) had an altered or oblit-
erated serial number, increase by 4 lev-
els.
Prado asserts that § 2K2.1(b)(4) allows only the application
of one of those two enhancements. Although the government
asserts that the enhancements address distinct attributes of
gun ownership, that does not advance its arguments. Posses-
sion of a stolen weapon is indeed distinct from possession of
a weapon with an obliterated serial number, although the two
may overlap at times, but the question here is not whether the
Sentencing Commission could impose both enhancements,
but whether it did so in § 2K2.1(b)(4). 1
1 The government cites to two circuit cases, United States v. Salinas, 462
F. App’x. 635, 637 (7th Cir. 2012) and United States v. Perez, 276 F. App’x.
512, 513 (7th Cir. 2008), in which our court purportedly “has treated
§ 2K2.1(b)(4) as permitting the application of both enhancements concur-
rently.” Govt. Brief at 12. That argument is problematic. Both cited cases
are unpublished orders of this court, which by our rules are treated as non-
precedential and should not be argued for their precedential effect, see
Seventh Circuit Rule 32.1; but even absent that issue, those cases involved
only challenges to the factual basis for the enhancement and no challenge
was made to the imposition of both enhancements in those cases, nor was
No. 21-1824 5
That question is answered by the plain language of the
provision. Subsection (b)(4) provides for a two-level increase
if any firearm was stolen or a four-level increase if any firearm
had an altered or obliterated serial number. The government’s
reading would substitute “and” in place of the “or” in that
provision, allowing for the two-level stolen firearm enhance-
ment and the four-level obliterated serial number enhance-
ment. But the Commission did not employ the word “and,”
or any equivalent language such as “and/or.”
Moreover, the history of § 2K2.1(b)(4) makes clear that
only one enhancement was envisioned. That is clear in the
language preceding this version, as set forth in the 2006
Amendment which provided:
Section 2K2.1(b) is amended by striking subdi-
vision (4), which formerly read:
“(4) If any firearm was stolen, or had an al-
tered or obliterated serial number, increase
by 2 levels.”
and inserting the following:
“(4) If any firearm (A) was stolen, increase
by 2 levels; or (B) had an altered or oblite-
rated serial number, increase by 4 levels.”
As that 2006 Amendment reveals, the previous version of
§ 2K2.1(b) quite clearly allowed for only one, two-level, en-
hancement if a firearm was stolen or had an altered serial
number. Nothing in that language allowed for the possibility
any such issue decided or even identified in the decisions. Those cases are
therefore inapposite.
6 No. 21-1824
of double-counting the enhancement if both situations were
present. There is no ambiguity in that provision.
The 2006 Amendment did not purport to change that, and
in fact continued to use the “or” connector rather than “and.”
The only apparent change in that amendment was to increase
the enhancement to four levels if the serial number provision
applied. The “Reasons for Amendment” in that Application
Note history makes clear that the purpose of the amendment
was to allow for the higher enhancement if obliteration of a
serial number was involved, stating in full:
Reason for Amendment: …
Third, the amendment modifies § 2K2.1(b)(4) to
increase penalties for offenses involving altered
or obliterated serial numbers. Prior to this
amendment, § 2K2.1(b)(4) provided a 2-level
enhancement if the offense involved either a
stolen firearm or a firearm with an altered or
obliterated serial number. The amendment pro-
vides a 4-level enhancement for offenses involv-
ing altered or obliterated serial numbers. This
increase reflects both the difficulty in tracing
firearms with altered or obliterated serial num-
bers, and the increased market for these types of
weapons.
That explanation makes clear that the amendment was
meant to reflect the greater threat posed by obliterated serial
numbers, thus allowing for a four-level increase under
§ 2K2.1(b)(4) rather than a two-level increase under that pro-
vision. Nothing in those “Reasons,” however, purports to
change § 2K2.1(b)(4) to allow the stacking of both the stolen
No. 21-1824 7
firearm enhancement and the obliterated serial number en-
hancement. That would have been a fundamental change in
the provision, and the absence of any language in the expla-
nation reflecting such an intent, in conjunction with the reten-
tion of the “or” connector, makes clear that no such change
was intended or made. As with the pre-2006 version, the plain
language of § 2K2.1(b)(4) is to allow either a two-level or four-
level enhancement in cases involving a stolen firearm or a
firearm with an altered or obliterated serial number.
Here, that means that the court could have imposed at
most the four-level enhancement, and could not also stack the
two-level stolen firearm enhancement as well. That alters the
calculation of the total offense level. The proper calculation
would begin with the 20 base offense level, add a four-level
enhancement for the number of firearms and a four-level en-
hancement for the obliterated serial number firearm, thus to-
taling 28, and then adding the additional four-level enhance-
ment for the use in connection with a felony offense followed
by the three-level deduction for acceptance of responsibility,
yielding a total offense level of 29. The new guideline range
would be 121–151 months absent the operation of the statu-
tory maximum.
III.
Prado argues that a remand for resentencing is required
because the guideline range of 121–151 months is less than the
range calculated by the district court of 135–168 months, and
the higher range had an “anchoring effect” which resulted in
a higher sentence than the court would likely have reached if
starting from a lower guideline range. See United States v.
Ruth, 966 F.3d 642, 650–51 (7th Cir. 2020) (noting that a guide-
line range will anchor a court’s discretion in choosing a
8 No. 21-1824
sentence, and that in most cases the guideline range will affect
the sentence). The government counters that the error in the
calculation of the guideline range was harmless and that no
remand is necessary because the statutory maximum was
lower than both of those initial ranges.
The government is correct. Prado’s argument is premised
on the notion that his guideline range was higher under the
prior calculation and should be lower if properly assessed.
But under both calculations, the applicable guideline range
here is the 120-month statutory maximum. Section 5G1.1(a)
provides that for sentencing on a single count of conviction,
“[w]here a statutorily authorized maximum sentence is less
than the minimum of the applicable guideline range, the stat-
utorily authorized maximum sentence shall be the guideline
sentence.” That is what we have here—a statutorily author-
ized maximum sentence that is lower than the minimum of
the guideline range—and that is true of both the range used
by the district court and the one it should have used. In that
situation, the guideline range is effectively reduced to the stat-
utory maximum. United States v. Fletcher, 763 F.3d 711, 718
(7th Cir. 2014); United States v. Boroczk, 705 F.3d 616, 622 (7th
Cir. 2013) (noting that under § 5G1.1(a) the guideline range
defaults to the statutory maximum); United States v. Kruger,
839 F.3d 572, 580 (7th Cir. 2016) (“because the [Guidelines]
range exceeded the statutory maximum term of 240 months,
the statutory maximum became the Guidelines sentencing
range”). In Fletcher, we addressed a similar situation, in which
the lower ends of both the guideline range the district court
used and the one for which the defendant argued were above
the statutory maximum, and we held that “[b]ecause the court
was constrained by the statutory maximum under either ver-
sion of the guidelines, any error in calculating the range …
No. 21-1824 9
could not have affected the district court’s choice of a sentence
and thus any possible error was harmless.” Fletcher, 763 F.3d
at 718; Kruger, 839 F.3d at 580–81 (holding that any error in
calculating the criminal history category could not have af-
fected the sentence because under § 5G1.1(a) the advisory sen-
tencing range would remain at the statutory maximum and
“there is no likelihood that he would have received a different
sentence absent the error”). Under § 5G1.1(a), the guideline
range for the district court was the statutory maximum of 120
months under both the district court’s calculations and the
proper calculation for which Prado has argued, and therefore
the error could not have affected the court’s choice of sentence
and the error in applying the § 2K2.1(b)(4) enhancement was
harmless.
Accordingly, the decision of the district court is
AFFIRMED.