United States v. Jonathan Gear , 418 F. App'x 488 ( 2011 )

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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
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United States Court of Appeals o
For the Seventh Circuit
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Chicago, Illinois 60604 e
Submitted November 3, 2010∗ c
Decided April 7, 2011 i
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Before d
FRANK H. EASTERBROOK, Chief Judge
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RICHARD A. POSNER, Circuit Judge n
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ANN CLAIRE WILLIAMS, Circuit Judge y
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Nos. 09-3727 & 09-3728 n
Appeals from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District ofaIllinois,
Plaintiff-Appellee, Western Division. c
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v. Nos. 01 CR 50004 & o
06 CR 50067 r
JONATHAN GEAR, Philip G. Reinhard, dJudge.
Defendant-Appellant. a
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Order e
Jonathan Gear pleaded guilty to possessing a firearm despite a conviction that
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made this illegal. He was sentenced to 63 months’ imprisonment, consecutive to 21
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months’ imprisonment for violating the terms of his supervised release. Ontdirect
appeal we rejected all but one of Gear’s arguments. The successful argument was that
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the district judge should not have treated one of his earlier convictions as a “crime of
violence” for the purpose of U.S.S.G. §2K2.1(a)(4). Our decision cut six levels off of the
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Guidelines calculation and reduced the recommended range from 57–71 months to 30–
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37 months. Before remanding for resentencing, however, we observed: “thedGuidelines
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are advisory. A judge is free to mete out a 63-month sentence to someone in Gear’s
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∗ .
These successive appeals have been submitted to the original panel under Operating Procedure 6(b).
After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed.
R. App. P. 34(a); Cir. R. 34(f). A
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Nos. 09-3727 & 09-3728 Page 2
position if the judge concludes that Gear’s criminal history shows him to be dangerous,
and in need of incapacitation, whether Gear’s base offense level is 14 or 20. [Citations
omitted.] But the judge should start by knowing what sentence the Guidelines
recommend.” United States v. Gear, 577 F.3d 810, 813 (7th Cir. 2009).
On remand, the district judge recalculated the sentencing range but concluded,
as we had anticipated he might, that 63 months remains appropriate, and that 21
additional months on revocation of supervised release also remains appropriate. Gear
has appealed a second time, contending that the total sentence of 84 months is
unreasonable. One of his arguments—that the judge should not have made the two
terms consecutive—was considered and rejected in the prior appeal. The argument is
no stronger the second time around. Actually it is weaker because of the law of the case.
Gear also contends that both 63 months for the new offense and the total of 84 months
for the new offense plus the fact that it was committed while on supervised release is
unreasonably high. But this, too, is a rerun. We told the district judge both that 63
months for the new crime, and running the sentences consecutively, would be
reasonable, if the judge continued to think this appropriate after taking account of the
Sentencing Commission’s (correctly understood) recommendation. We do not see any
reason to reverse course.
Although Gear contends that the district judge did not adequately address his
arguments for a lower sentence, we have reviewed the transcript and conclude that the
judge adequately responded to the material issues. A judge need not slog through each
argument, when the rationale can be gleaned from context. See Rita v. United States, 551
U.S. 338, 356–60 (2007). We do not understand the judge to have foresworn all
possibility of lenience based on rehabilitation after the initial sentencing. Instead the
judge doubted that Gear, who is a repeat offender, was less of a risk to society today
than he was at the time of the original sentencing. This appeal therefore is not affected
by Pepper v. United States, 131 S. Ct. 1229 (2010), which concluded that, when
resentencing a defendant after an appellate remand, the district judge is entitled to
consider evidence of the defendant’s good conduct in prison. Pepper did not hold that a
sentence reduction for self-improvement is essential or that the district judge must
discuss this subject in every resentencing.
Gear contends that the district judge committed a procedural error by treating as
two episodes of misconduct a single wrongful use of a firearm on May 13, 2005. The
prosecutor agrees with Gear that he brandished a firearm only once that day but
contends that the district judge’s statement was a slip of the tongue rather than a
material error. Yet when explaining his sentence the judge referred separately to
different parts of the presentence report as if they established two distinct events on
May 13, and when wrapping up the judge stated: “Your conduct with a weapon and
using it and threatening to use it on several occasions and possessing it while on
supervised release, at least on three separate incidence … after your release from the
halfway house, all show that you are a dangerous person” (emphasis added). Yet the
Nos. 09-3727 & 09-3728 Page 3
record documents only two post-release episodes.
Unfortunately, no one pointed out this error to the district judge, so he did not
have an opportunity to reveal whether the difference between two and three post-
release episodes is material to his sentence. The United States contends that the
standard of appellate review is plain error. But the presentence report was correct, and
the error first appeared in the district judge’s explanation of his sentence, after the
presentations of counsel had been completed. Lawyers need not take exception to
judicial rulings already made. Fed. R. Crim. P. 51(a); United States v. Bartlett, 567 F.3d
901, 910 (7th Cir. 2009). The harmless-error standard, not the plain-error standard,
therefore governs this appeal. The United States does not contend that the error was
harmless. We therefore vacate the sentence a second time and remand for another
sentencing proceeding in which misapprehensions about Gear’s criminal history will
not play a role.