United States v. Nain Galvan ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2771
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NAIN GALVAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18-cr-00031-TWP-RAB-1 — Tanya Walton Pratt, Chief Judge.
____________________
ARGUED MAY 18, 2022 — DECIDED AUGUST 16, 2022
____________________
Before HAMILTON, BRENNAN and KIRSCH, Circuit Judges.
HAMILTON, Circuit Judge. Appellant Nain Galvan, a citizen
of Honduras, was arrested in possession of a handgun after
robbing his employer and threatening several people at an
apartment complex. He was later charged with and pled
guilty to illegally possessing a firearm. At sentencing, the dis-
trict court applied the guideline provisions for robbery be-
cause it found that Galvan used the same handgun in com-
mitting a robbery about two hours earlier. Galvan appeals,
2 No. 21-2771
arguing that the district court erred in factual findings essen-
tial to its application of the Sentencing Guidelines. We affirm.
I. Factual and Procedural Background
Galvan worked part-time for Asencio Gomez in construc-
tion near Indianapolis. When necessary, Gomez would occa-
sionally let Galvan and others borrow one of his work vans to
assist with a project. On October 21, 2017, Galvan borrowed a
van from Gomez because Galvan’s own vehicle had broken
down. The next day, he drove to Gomez’s home to return the
vehicle. Galvan gave the keys to Gomez and shared a meal
with Gomez and his family. For unknown reasons, Galvan
eventually pulled out a handgun, fired several shots, took the
keys from Gomez’s pocket, and drove away in the van.
Gomez immediately called the police and reported a robbery.
Less than two hours later, police received a report of a man
with a gun at an apartment complex. Galvan had threatened
several men in the complex while brandishing a handgun.
When police arrived, they found Galvan leaning on the
driver’s side of Gomez’s stolen van. Police arrested Galvan,
and one of the officers found a handgun in the driver’s seat.
Galvan was later charged with and pled guilty to possessing
that handgun as an alien unlawfully in the United States, in
violation of 18 U.S.C. § 922(g)(5).
At a combined plea and sentencing hearing, the district
court first accepted Galvan’s guilty plea but then decided that
a second hearing was needed to consider evidence relevant to
Galvan’s sentence. At that time, Galvan faced a pending
charge in state court for armed robbery of Gomez’s van, but
that charge was later dismissed. At the second sentencing
No. 21-2771 3
hearing, the district court heard testimony from both Gomez
and the detective who investigated the robbery.
The district court then made several findings about how
to apply the Sentencing Guidelines to Galvan’s case. The court
found that the guideline for robbery governed Galvan’s fire-
arm-possession offense because he had used the same hand-
gun when he robbed Gomez. See U.S.S.G. §§ 2B3.1(a) &
2K2.1(c)(1)(A). The court also found that Galvan had fired the
handgun in connection with the robbery, which increased his
offense level by seven. These and other guideline findings
raised Galvan’s total offense level from 14 to 26. With Crimi-
nal History I, Galvan’s guideline sentencing range was 63 to
78 months in prison. The district court sentenced Galvan to 70
months in prison and two years of supervised release. Galvan
did not file a timely appeal, but he later filed a motion under
28 U.S.C. § 2255 asserting in part that his counsel was ineffec-
tive for failing to file a notice of appeal when asked. The dis-
trict court granted the motion, reissued the judgment, and en-
tered his notice of appeal.
II. Analysis
The parties debate whether Galvan waived, forfeited, or
properly preserved for appeal the issues he raises. “Waiver
occurs when a party intentionally relinquishes a known right;
forfeiture, in contrast, occurs as a result of a negligent failure
timely to assert a right.” United States v. Hyatt, 28 F.4th 776,
781 (7th Cir. 2022). If a defendant has “sound strategic rea-
sons” to forgo an argument in the district court, that points
toward waiver. Id., quoting United States v. Dridi, 952 F.3d 893,
898 (7th Cir. 2020). We do not consider waived arguments, but
we may assess forfeited arguments for plain error. Id.; see also
Fed. R. Crim. P. 52(b) (“A plain error that affects substantial
4 No. 21-2771
rights may be considered even though it was not brought to
the court’s attention.”). We do not find waiver here, and the
outcome of this appeal does not turn on the difference be-
tween standards of review for preserved and forfeited issues.
A. Determining Galvan’s Base Offense Level
First, Galvan argues that the district court erred in setting
the base offense level for his sentence because there was
insufficient evidence that he used the same firearm in his
federal possession offense and the robbery of Gomez. Galvan
was convicted of violating 18 U.S.C. § 922(g)(5), which would
ordinarily call for a base offense level of 14. U.S.S.G.
§ 2K2.1(a)(6). However, the district court applied
§ 2K2.1(c)(1)(A):
(c)(1) If the defendant used or possessed any
firearm … cited in the offense of conviction in
connection with the commission … of another
offense[,] … apply—
(A) § 2X1.1 (Attempt, Solicitation, or Con-
spiracy) in respect to that other offense, if the
resulting offense level is greater than that
determined above ….
The guideline for attempt, solicitation, or conspiracy provides
that the base offense level should be the “base offense level
from the guideline for the substantive offense, plus any ad-
justments from such guideline for any intended offense con-
duct that can be established with reasonable certainty.”
§ 2X1.1(a).
Here, applying the cross-reference in § 2K2.1(c)(1)(A), the
district court found that the higher offense level of 20 for rob-
bery governed rather than the base offense level of 14 for
No. 21-2771 5
possessing a handgun as an alien unlawfully in the United
States because Galvan used the firearm from his possession
conviction “in connection with” his robbery of Gomez. See
§§ 2B3.1(a), 2K2.1(a)(6), & 2K2.1(c)(1)(A). The court also con-
sidered specific offense characteristics for Galvan’s firearms
offense under the robbery guideline based on this cross-refer-
ence. 1
Galvan contends that this cross-reference should not ap-
ply because the district court “did not point to specific pieces
of evidence giving reason to believe that the same firearm was
possessed during Mr. Galvan’s [robbery of Gomez].” At best,
however, Galvan has forfeited this issue. The government
points out that Galvan had a strategic reason not to question
whether the same gun was used in the offense of conviction
and in his robbery. At sentencing, Galvan admitted to firing a
gun while at Gomez’s home. Any argument that the gun he
fired was different from the handgun cited in the offense of
conviction would necessarily imply that Galvan violated
§ 922(g)(5) again with a second firearm that day. This two-gun
scenario sounds more like an aggravating factor during sen-
tencing, not a mitigating one.
Even so, we construe waiver principles liberally in the de-
fendant’s favor. United States v. Butler, 777 F.3d 382, 387 (7th
Cir. 2015). Galvan stopped short of expressly admitting dur-
ing sentencing that the firearm he discharged at Gomez’s
home was the same handgun found in his vehicle when he
1 We found in United States v. Jones, 313 F.3d 1019, 1021–22 (7th Cir.
2002), that the relevant conduct provision at § 1B1.3 governs application
of the cross-reference in § 2K2.1(c)(1)(B), the provision for homicide. Gal-
van has not disputed that the robbery was relevant conduct for his
§ 922(g)(5) conviction.
6 No. 21-2771
was arrested. This issue is best characterized as forfeited by
Galvan’s failure to raise it during sentencing, so we review it
for plain error, Hyatt, 28 F.4th at 781, but we would reach the
same result if Galvan had preserved the issue. We have dis-
cretion to remedy a plain error at sentencing when: (1) “there
is an error ‘that has not been intentionally relinquished or
abandoned’”; (2) “the error is … ‘clear or obvious’”; (3) “the
error ‘affected the defendant’s substantial rights[,]’” i.e., it af-
fected the outcome of the proceedings in the district court;
and (4) “the error ‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” United States v.
Hopper, 934 F.3d 740, 766 (7th Cir. 2019), quoting Molina-Mar-
tinez v. United States, 578 U.S. 189, 194 (2016).
Galvan’s argument fails at the first step of plain-error anal-
ysis because there was no error. The court needed to find by a
preponderance of the evidence that the handgun cited in Gal-
van’s offense of conviction was the same handgun used “in
connection with” the robbery of Gomez. See U.S.S.G.
§ 2K2.1(c)(1)(A); United States v. Major, 33 F.4th 370, 379 (7th
Cir. 2022). The court did so.
When discussing the application of the Guidelines during
Galvan’s second sentencing hearing, the district court noted
that it “must also consider whether the firearm used was the
same firearm.” After describing the events that transpired, the
district court found it more likely than not that all the en-
hancements applied, including the greater offense level re-
sulting from use of the same gun “in connection with” the
robbery. At no point did Galvan object to the finding that the
same firearm was used. He argued instead that the firing of
the gun did not occur in connection with a robbery.
No. 21-2771 7
Ample evidence supported the court’s finding that the
same gun was involved in both episodes. Gomez testified at
sentencing that Galvan pulled out and discharged a handgun
while at Gomez’s home. Less than two hours later, the arrest-
ing officer found a handgun in the front seat of the van Galvan
had stolen. The district court was justified in finding only one
firearm was used, and Galvan never actually suggested oth-
erwise. The district court did not explain this fact determina-
tion in detail, but we do not expect district courts to dwell on
issues that are not contested at sentencing. E.g., United States
v. Longstreet, 567 F.3d 911, 928–30 (7th Cir. 2009) (affirming
district court’s determination of drug quantity attributable to
defendant where defendant did not object to drug quantity in
PSR or at sentencing hearing). There was no error.
B. Increasing Galvan’s Offense Level Due to a Specific Offense
Characteristic
In the alternative, Galvan maintains that he did not dis-
charge a firearm in connection with a robbery. At sentencing,
the district court applied a specific offense characteristic that
increased Galvan’s offense level by seven after it found “that
the defendant discharged the firearm” in connection with his
robbery of Gomez. See U.S.S.G. § 2B3.1(b)(2)(A). At sentenc-
ing, Galvan objected to the court’s application of this guide-
line provision. His counsel said that Galvan, who still faced a
robbery charge in state court and did not testify on the subject,
had told him that he brought the handgun to Gomez’s house
because “Mr. Gomez was thinking about buying it.” In coun-
sel’s relay of Galvan’s account, he “test fired” the handgun in
connection with this potential sale. The court rejected that ac-
count: “The defendant’s version of what happened is not
8 No. 21-2771
credible. It’s not what Mr. Gomez reported to the police and
it’s not what Mr. Gomez testified to today.”
The basic thrust of Galvan’s argument on appeal is the
same—no gunshots occurred in connection with a robbery—
but with a twist. He contends now that he fired the shots be-
fore he formed the intent to commit robbery. Whether he pre-
served that argument for appeal or not, and thus whether we
apply the standard for a preserved issue or for a forfeited one,
Galvan loses on the merits. Under the more generous stand-
ard, we review for clear error the factual findings that under-
lie a district court’s application of the Sentencing Guidelines.
United States v. Harper, 766 F.3d 741, 744 (7th Cir. 2014). The
district court’s factual findings in applying the Guidelines
must be supported by a preponderance of the evidence. See
Major, 33 F.4th at 379. We will disturb those findings only if,
upon reviewing the record, “we are left with the definite and
firm conviction that a mistake has been made.” United States
v. Burnett, 37 F.4th 1235, 1239 (7th Cir. 2022). The district court
reasonably found here that Galvan fired the shots as part of
his effort to threaten and intimidate Gomez to give up the
keys to the van. There was no clear error.
At the time of the first sentencing hearing, Galvan had
charges pending in state court for his armed robbery of
Gomez, but his trial date had not been set. The district court
wanted to proceed with the federal sentencing promptly,
without waiting for the state court to resolve the robbery case.
The court decided to hold a second sentencing hearing in part
to hear testimony from Gomez so the court could determine
whether to apply the specific offense characteristic for dis-
charging a firearm in connection with a robbery under
§ 2B3.1(b)(2).
No. 21-2771 9
Recall that Galvan arrived at Gomez’s home to return a
borrowed work van and to share a meal with Gomez and his
family. Galvan later pulled out a handgun and discharged it
four times. Gomez testified that the shots surprised and
scared him and his family. He said that he calmly asked Gal-
van to leave. As Gomez escorted Galvan away, one of
Gomez’s neighbors came outside. Gomez testified that Gal-
van then fired the gun two more times before he “turned
around and he pointed the gun and he took the keys [to the
work van] from my pocket.” When asked at sentencing if he
was frightened, Gomez responded, “Yes, after that first time
when he shot. And then, after the second one, I was fearful
and I just stayed behind.” As soon as Galvan drove away in
the stolen van, Gomez called the police to report the robbery.
Under Indiana law, an armed robbery occurs when a
person knowingly or intentionally takes property from
another person by using or threatening the use of force on a
person while armed with a deadly weapon. See Ind. Code
§ 35-42-5-1(a). Galvan argues that he fired the shots before he
formed the intent to rob Gomez. That defense might be
available as a matter of theory, but not as a matter of fact in
this appeal after the district court found otherwise on the
evidence. Galvan’s own hypothetical at oral argument shows
how finely he is trying to slice things based on a robber’s state
of mind:
The Court: If a bank robber goes into the bank
and fires a gun in the air, and then says, “I’m
here to rob the bank, everybody get down,”
does the bank robbery only commence once he
says “I’m here to rob the bank, everybody get
down,” and he didn’t actually fire the gun
10 No. 21-2771
during the commission of the robbery? That
would seem totally absurd to me.
Galvan’s Counsel: Based on your example we
would agree. I think the more appropriate hy-
pothetical is that if that bank robber took the
gun and fired several shots into the ground,
then went into the bank and said, “I’m here to
rob the bank,” there’s a question as to whether
the shooting, or the firing of the gun, is in con-
nection with the bank robbery.
The Court: Well that’s, that’s a good hypothet-
ical. What if he did it after the robbery? So he
commits the robbery, he goes outside, he shoots
the gun up in the air a couple of times, every-
body hits the ground, right? And he runs away.
Would that—would he have shot the gun after
the commission of the robbery? Cause again,
that, that seems, like, a little absurd to me—I
mean maybe it’s not?
Galvan’s Counsel: That would be—that would
be after the robbery had occurred. I guess we’d
have to—
The Court: See how hard that would be to de-
termine?
Returning from the hypothetical to the facts here, accord-
ing to Gomez’s testimony there was no gap between the sec-
ond series of shots and the robbery. Gomez testified that Gal-
van was standing close to him when he fired those shots. Gal-
van then turned and “pointed the gun and he took the keys.”
There is no evidence of an intervening action or an interval of
No. 21-2771 11
time between the gunshots and the taking of Gomez’s keys.
This testimony was more than enough to show by a prepon-
derance of the evidence that Galvan discharged a firearm
“during” the robbery under Indiana law. See Ind. Code § 35-
42-5-1(a); Gray v. State of Indiana, 903 N.E.2d 940, 943 (Ind.
2009) (“A conviction for armed robbery may be sustained
even if the deadly weapon was not revealed during the rob-
bery.”). The district court did not err in adding seven levels
under § 2B3.1(b)(2)(A).
The judgment of the district court is
AFFIRMED.