United States v. Rex Hammond

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2357
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REX HAMMOND,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 18-cr-00005 — Robert L. Miller, Jr., Judge.
____________________
ARGUED OCTOBER 27, 2020 — DECIDED APRIL 26, 2021
____________________
Before SYKES, Chief Judge, and KANNE and ST. EVE, Circuit
Judges.
ST. EVE, Circuit Judge. Over the course of a three-week
crime spree in October 2017, Rex Hammond robbed, or at-
tempted to rob, seven stores at gunpoint in Indiana and Mich-
igan. Five of the seven incidents took place in northern Indi-
ana, where the government charged Hammond with five
counts of Hobbs Act robbery and several attendant weapons
charges. The charges included one count of being a felon in
2 No. 19-2357
possession of a firearm in violation of 18 U.S.C. § 922(g) and
two counts of brandishing a weapon during a crime of vio-
lence in violation of 18 U.S.C. § 924(c). A jury convicted Ham-
mond of all charges, and the district court sentenced him to
forty-seven years in prison.
Hammond now appeals his conviction and sentence. First,
he argues that the district court should have suppressed cer-
tain cell site location information that law enforcement col-
lected to locate him during his robbery spree and to confirm
his location on the days of the robberies, based on Carpenter v.
United States, 138 S. Ct. 2206 (2018). He also argues that the
district court erred in instructing the jury regarding the felon-
in-possession charge under Rehaif v. United States, 139 S. Ct.
2191 (2019). Finally, he claims that Hobbs Act robbery is not a
crime of violence under 18 U.S.C. § 924(c) or under the Sen-
tencing Guidelines, so his § 924(c) conviction must be over-
turned, and his sentence vacated. We reject each of these ar-
guments and affirm Hammond’s conviction and sentence in
all respects.
I. Background
In October 2017, a series of armed robberies plagued
northern Indiana and southern Michigan. Each robbery in-
volved a white man wearing a long sleeved, gray t-shirt; a
winter hat; a black face mask; clear, plastic gloves; and bright
blue tennis shoes. During each incident, the perpetrator
walked straight up to the register and demanded that the
cashier withdraw cash from the register and put it into a bag
that the man provided. Based on the similarities among the
robberies, law enforcement suspected that the same perpetra-
tor had committed them. Robberies took place on Friday, Oc-
tober 6 in Logansport, Indiana; Saturday, October 7 in Peru,
No. 19-2357 3
Indiana; and Monday, October 9 in Auburn, Indiana. On Oc-
tober 10, the perpetrator attempted two unsuccessful rob-
beries in southern Michigan—one in Portage and one in Kal-
amazoo.
During the first attempted robbery on October 10, the
cashier fled the scene, leaving the suspect to attempt opening
the cash register himself. He failed and fled. The perpetrator
then attempted a second robbery, this time at a liquor store in
the adjoining town of Kalamazoo. This endeavor also ended
poorly for the robber. Rather than placing the cash into the
robber’s bag as directed, the store clerk placed the cash from
the register on the counter. This forced the robber to attempt
to stuff the cash into the bag and gave the store clerk an op-
portunity to grab the gun, a desert-sand colored Hi-Point, and
swipe it behind the counter. The robber fled without the
weapon.
Leaving his weapon behind had two important conse-
quences: First, there was a two-week hiatus between the Kal-
amazoo attempted robbery and the resumption of the rob-
beries on October 24. In that time, the robber secured a new
weapon—a dark colored, .22 caliber revolver. Witnesses prior
to the Kalamazoo robbery described the robber’s weapon as a
“light brown gun.” After October 10, witnesses described the
robber’s weapon as a “dark revolver.” The robber committed
two additional robberies using the dark revolver, on October
25 in Decatur, Indiana and October 27 in Logansport, Indiana.
Despite the change in weapon, other similarities with the ear-
lier robberies indicated that the same suspect likely commit-
ted the late October robberies.
Second, in addition to forcing the robber to find a new
weapon, the Kalamazoo store clerk’s quick thinking also gave
4 No. 19-2357
law enforcement their first substantial clue as to the identity
of the robber. By this time, federal and state law enforcement
agencies had begun cooperating with each other to investi-
gate the string of incidents. So, on Wednesday, October 25, of-
ficers from several jurisdictions met to review surveillance of
the robberies, including Agent Andrew Badowski of the Bu-
reau of Alcohol, Tobacco and Firearms (“ATF”); Detective Ja-
cob Quick of the Indiana State Police; Detective Tyler Preston
of the Logansport, Indiana police; Detective Stacey Sexton of
the Auburn, Indiana police; and Detective Cory Ghiringhelli
of the Kalamazoo, Michigan police.
Upon recovery of the desert-sand colored Hi-Point, ATF
Agent Badowski traced the weapon to Todd Forsythe, who
reported that he had sold the weapon to “Rex.” Forsythe also
provided Badowski with the cell phone number that “Rex”
used to arrange the gun sale. On Saturday, October 28,
Badowski conveyed this information to Detective Quick, who
traced the phone number to the defendant, Rex Hammond.
Using Indiana DMV records, the officers also confirmed that
Hammond’s vehicle, a light-colored Chrysler Concorde,
matched descriptions of the vehicle used during the robberies
and caught on surveillance footage near the scenes of the
crimes. Officers also learned that Hammond had several prior
convictions in Indiana, including armed robbery.
The parties dispute exactly when officers learned all of this
information: Hammond asserts that officers knew that he was
the prime suspect by Saturday, October 28 and that officers
could have sought a warrant at the time. In contrast, the gov-
ernment emphasizes that while officers suspected Hammond
had committed the robberies, they spent the weekend con-
firming that the evidence linked Hammond to the robberies,
No. 19-2357 5
including re-interviewing Forsythe on Sunday, October 29.
Detective Ghiringhelli testified that “the information identify-
ing our suspect came over the weekend. I believe it came the
evening of the 28th, which was a Saturday. It either came the
28th or 29th. It was that weekend.” Ghiringhelli also testified
that he believed that he had probable cause to arrest Ham-
mond by Monday, October 30.
On that Monday, Ghiringhelli submitted an “exigency” re-
quest under 18 U.S.C. § 2702(c)(4) to AT&T, requesting cell site
location information (“CSLI”) to geolocate Hammond using
the cell phone number that Forsythe had provided. In addi-
tion to real-time “pings” to nearby cell towers, Ghiringhelli
requested Hammond’s historical CSLI dating back to the be-
ginning of the robbery spree on October 7. AT&T complied
with Ghiringhelli’s request. The historical CSLI records con-
firmed that Hammond’s phone was near Portage and Kala-
mazoo, Michigan on October 10, and AT&T began providing
real-time CSLI, consisting of “pings” to Hammond’s location
roughly every fifteen minutes, commencing at approximately
6 p.m. on October 30.
Using this real-time CSLI, Ghiringhelli directed Detectives
Quick and Sexton to Elkhart, Indiana around 7:30 or 8 p.m. on
Monday, October 30. The officers could not locate Hammond
in Elkhart. Around 11:30 p.m., Hammond’s CSLI pinged near
the Indiana toll road in South Bend. Following that ping,
Quick and Sexton recognized Hammond’s light blue Chrysler
Concorde in a Quality Inn parking lot in South Bend. Quick
ran the license plate and confirmed it belonged to Hammond.
The detectives called for backup and began following Ham-
mond when he exited the parking lot after midnight. As Ham-
mond drove south from South Bend toward Marshall County,
6 No. 19-2357
Detective Quick called the county’s sheriff’s department, in-
formed the department that he was following an armed rob-
bery suspect, and requested a traffic stop. After apparently re-
alizing that officers were following him, Hammond lost the
officers by engaging in evasive driving maneuvers. While
waiting on updated CSLI information from Ghiringhelli,
Quick and Sexton met with Marshall County Deputy Kerry
Brouyette. During this meeting, Brouyette recognized Ham-
mond drive past them, so the officers resumed their pursuit.
Brouyette ultimately stopped Hammond’s car around 1:23
a.m. for speeding and failing to signal. At the time, Hammond
wore a gray t-shirt, a winter hat, and bright blue tennis shoes,
matching the description provided by the robbery victims.
After Detective Quick confirmed with Logansport 1 Detec-
tive Preston that they should arrest Hammond immediately,
the officers ordered Hammond and his passenger, Alexandra
Latendresse, out of the vehicle. They arrested Hammond and
read him his Miranda rights. Hammond told officers that eve-
rything in the car belonged to him, and Latendresse told of-
ficers that Hammond had told her that they were going to
“get[] some money.” Detective Quick later sought and ob-
tained a search warrant for Hammond’s car, which contained
a black .22 caliber revolver, 44 rounds of .22 caliber ammuni-
tion, methamphetamine, a white plastic bag, rubber gloves, a
cell phone, and a Garmin GPS Unit.
A grand jury indicted Hammond on January 10, 2018 for
five counts of Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951; two counts of brandishing a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c); and one count of
1 The location of the first and last of the Indiana robberies.
No. 19-2357 7
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g).
Also in January 2018, the government filed an ex parte ap-
plication for a court order for Hammond’s historical CSLI.
Although the application acknowledged that law enforce-
ment had already obtained “partial phone records” from
Hammond’s phone, the application did not rely on those rec-
ords as a basis for granting the application. The magistrate
judge found “reasonable grounds to believe that the records
… are relevant and material to an ongoing criminal investiga-
tion” and ordered AT&T to disclose the historical CSLI rec-
ords pursuant to 18 U.S.C. § 2703(d). The records confirmed
that around the time of each robbery, Hammond’s phone con-
nected to AT&T towers near the stores.
Approximately six months after the magistrate judge is-
sued the § 2703(d) order, the Supreme Court held that the col-
lection of historical CSLI over the course of 127 days, without
a warrant, was a search in violation of the Fourth Amend-
ment. Carpenter, 138 S. Ct. at 2217. As such, Carpenter held that
the government must “generally” obtain a warrant before ob-
taining such records. Id. at 2222.
Relying substantially on Carpenter, Hammond moved the
district court in September 2018 to suppress all cell phone
data related to Hammond’s phone number, the physical evi-
dence recovered from Hammond’s car, and the statements
made by Hammond and Latendresse during the October 31
traffic stop. After a lengthy suppression hearing, the district
court ruled that although the collection of Hammond’s CSLI
was a search, Detective Ghiringhelli had relied in good faith
on the Stored Communications Act in requesting the infor-
mation from AT&T. In the district court’s view, because the
8 No. 19-2357
Supreme Court had not yet decided Carpenter at the time of
the search, it was reasonable for Detective Ghiringhelli to rely
on the Stored Communications Act’s provisions in requesting
cell phone data from AT&T.
The government tried Hammond before a jury in April
2019. The government called roughly thirty witnesses over
the course of three days; the defense did not call any witnesses
and immediately rested. The jury returned a verdict of guilty
on all counts after roughly one hour of deliberations.
After trial, Hammond moved to vacate his felon-in-pos-
session conviction, based on the Supreme Court’s intervening
ruling in Rehaif v. United States, which held that a felon-in-pos-
session conviction requires knowledge of felon status. 139 S.
Ct. at 2191, 2200. The district court denied the motion.
The district court sentenced Hammond to forty-seven
years (564 months) in prison: ten, twelve, fourteen, sixteen,
and eighteen years to run concurrently for each of the five
Hobbs Act robbery convictions, plus consecutive, mandatory
minimum sentences of seven, seven, and fifteen years for the
two brandishing-a-weapon counts and felon-in-possession
count, respectively. This appeal followed.
II. Discussion
A. Suppression of Cell Site Location Information and Re-
sulting Evidence
Hammond first challenges the district court’s denial of his
motion to suppress the CSLI obtained from AT&T and the ev-
idence derived from that data, including the physical evi-
dence recovered from his car and his and Latendresse’s state-
ments to officers during the traffic stop. Hammond focuses on
the Supreme Court’s decision in Carpenter, which found that
No. 19-2357 9
the collection of historical CSLI without a warrant constituted
a search in violation of the Fourth Amendment. 138 S. Ct. at
2220. Hammond argues that Carpenter compels the exclusion
of the CSLI collected in this case. In response, the government
asserts a litany of reasons why suppression is unwarranted.
The government collected three different types of CSLI 2
from Hammond’s phone: (1) the historical CSLI collected by
the government under the authority of the magistrate judge’s
§ 2703(d) order, (2) the historical CSLI collected by Ghir-
inghelli to confirm Hammond’s proximity to the Michigan
robberies, and (3) the “real time” CSLI collected by Ghir-
inghelli for several hours to physically locate Hammond in
Indiana. Each of these categories requires a separate Fourth
Amendment analysis. As we explain below, we hold that the
first category—the historical CSLI collected under the magis-
trate judge’s § 2703(d) order—was a search for Fourth
Amendment purposes, but was collected in good faith reli-
ance on § 2703(d) of the Stored Communication Act, which
was settled law at the time the government collected the data.
As a result, the Fourth Amendment does not require the dis-
trict court to exclude this evidence from the jury’s considera-
tion. The second category of CSLI—the historical CSLI col-
lected by Ghiringhelli—was not introduced at trial nor did it
“taint” any other evidence. Accordingly, there is no need to
2 “CSLI is location information generated by cellular phone providers
that indicates which cell tower a particular phone was communicating
with when a communication was made.” United States v. Curtis, 901 F.3d
846, 847 (7th Cir. 2018) (citation omitted). “Any cell phone with a function-
ing battery regularly communicates with cell towers. The phone leaves be-
hind a trail” of this data. United States v. Castro-Aguirre, 983 F.3d 927, 934
(7th Cir. 2020).
10 No. 19-2357
exclude evidence never admitted at trial or used improperly
to obtain additional evidence. Finally, the collection of the
CSLI in the third category—Hammond’s real-time CSLI—
was not a search for Fourth Amendment purposes based on
the facts of this case. We discuss each of these categories of
CSLI below.
1. Standard of Review
We review a district court’s denial of a motion to suppress
“under a ‘dual standard of review’; we review legal conclu-
sions de novo but findings of fact for clear error.” United States
v. Edgeworth, 889 F.3d 350, 353 (7th Cir. 2018) (quoting United
States v. Tepiew, 859 F.3d 452, 456 (7th Cir. 2017)). “A factual
finding is clearly erroneous only if, after considering all the
evidence, we cannot avoid or ignore a definite and firm con-
viction that a mistake has been made.” United States v. Thur-
man, 889 F.3d 356, 363 (7th Cir. 2018) (quoting United States v.
Burnside, 588 F.3d 511, 517 (7th Cir. 2009)).
2. Analysis
The Fourth Amendment provides: “The right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be vio-
lated[.]” U.S. Const. Amend. IV. “The ‘touchstone’ of the
Fourth Amendment analysis is whether a person has a ‘con-
stitutionally protected reasonable expectation of privacy.’”
Henry v. Hulett, 969 F.3d 769, 776–77 (7th Cir. 2020) (citing Ol-
iver v. United States, 466 U.S. 170, 177 (1984)); see also Riley v.
California, 573 U.S. 373, 381 (2014). As explained in Justice
Harlan’s concurring opinion in Katz v. United States, the
Fourth Amendment requires both that the defendant held a
subjective expectation of privacy and that “society is prepared
No. 19-2357 11
to recognize [that expectation] as ‘reasonable.’” Id. (quoting
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., con-
curring)); see also Byrd v. United States, 138 S. Ct. 1518, 1526
(2018) (recognizing the primacy and wide acceptance of Jus-
tice Harlan’s concurrence); Smith v. Maryland, 442 U.S. 735,
740 (1979) (same). “To determine whether someone has a le-
gitimate expectation of privacy, courts must consider
(1) whether that person, by his conduct, has exhibited an ac-
tual, subjective expectation of privacy and (2) whether his ex-
pectation of privacy is one that society is prepared to recog-
nize as reasonable.” United States v. Sawyer, 929 F.3d 497, 499
(7th Cir. 2019).
If a defendant has the requisite expectation of privacy, the
Fourth Amendment generally requires law enforcement to
obtain a warrant before executing a search. See Riley, 573 U.S.
at 382. “In the absence of a warrant, a search is reasonable only
if it falls within a specific exception to the warrant require-
ment.” Id. (citing Kentucky v. King, 563 U.S. 452, 459–60 (2011)).
“One well-recognized exception applies when ‘the exigencies
of the situation make the needs of law enforcement so com-
pelling that a warrantless search is objectively reasonable un-
der the Fourth Amendment.’” King, 563 U.S. at 460 (quoting
Mincey v. Arizona, 437 U.S. 385, 394 (1978)).
The Supreme Court “fashioned the exclusionary rule” to
“compel respect for the constitutional guaranty” of freedom
from unreasonable searches. United States v. Martin, 807 F.3d
842, 846 (7th Cir. 2015) (quoting Davis v. United States, 564 U.S.
229 (2011)). “The [exclusionary] rule is not a ‘personal consti-
tutional right,’ and its application ‘exacts a heavy toll on both
the judicial system and society at large,’ as its effect often ‘is
to suppress the truth and set the criminal loose in the
12 No. 19-2357
community without punishment.’” Id. (quoting United States
v. Calandra, 414 U.S. 338, 348 (1974); Davis, 564 U.S. at 237).
“The exclusionary rule is designed primarily to deter uncon-
stitutional conduct.” United States v. Curtis, 901 F.3d 846, 849
(7th Cir. 2018). The exclusionary rule therefore does not apply
when law enforcement has relied in good faith on a facially
valid warrant, United States v. Leon, 468 U.S. 897, 922 (1984); a
then-valid statute, Illinois v. Krull, 480 U.S. 340, 357 (1987); or
binding circuit precedent, Davis, 564 U.S. at 232. Succinctly,
“[s]uppression of evidence…has always been our last resort.”
Hudson v. Michigan, 547 U.S. 586, 591 (2006).
i. Historical CSLI Obtained Pursuant to § 2703(d) Order
We first address the government’s collection of Ham-
mond’s historical CSLI from AT&T pursuant to the § 2703(d)
order.
Section 2703 of the Stored Communications Act, entitled
“Required disclosure of customer communications or rec-
ords,” authorizes courts to “order cell-phone providers to dis-
close non-content information if the government ‘offers spe-
cific and articulable facts showing that there are reasonable
grounds to believe that ... the records or other information
sought are relevant and material to an ongoing criminal in-
vestigation.’” Curtis, 901 F.3d at 848 (quoting 18 U.S.C.
§§ 2703(c)(1)(B), (d)).
Based on this statutory authority, in January 2018, the gov-
ernment sought a § 2703(d) order from the magistrate judge
directing AT&T to release Hammond’s historical CSLI to the
government. In its application for the order, the government
recounted the distinctive details of the five Indiana robberies,
Agent Badowski’s investigation into the abandoned Hi-Point,
No. 19-2357 13
the gun-seller’s identification of “Rex” and his cell phone
number, Hammond’s ownership of the phone number, and
the similarities in appearance between Hammond’s driver’s
license photo and the images of the suspect from the security
footage of the robberies. Based on this evidence, the govern-
ment represented that “there [were] reasonable grounds to
believe that the records … are relevant and material to an on-
going criminal investigation.” The magistrate judge agreed
and issued the order.
Six months after the magistrate judge issued its order in
January 2018, the Supreme Court decided Carpenter, which
held that the government “must generally obtain a warrant
supported by probable cause before acquiring [historical
CSLI].” 138 S. Ct. at 2221. Authorization by § 2703(d) is con-
stitutionally insufficient. Id. Hammond now seeks to exclude
the historical CSLI based on Carpenter’s holding.
We addressed this argument in Curtis. 901 F.3d at 848.
There, the government relied on § 2703(d) to collect the de-
fendant’s CSLI for 314 days, before the Supreme Court issued
its decision in Carpenter. We concluded that the district court
properly admitted the CSLI obtained pre-Carpenter based on
the good faith exception to the warrant requirement. Id. (cit-
ing Krull, 480 U.S. at 349–50) (holding that the good faith ex-
ception announced in Leon, 468 U.S. 897, is “equally applica-
ble” to cases in which law enforcement reasonably relied on a
statute authorizing warrantless searches that is later found to
violate the Fourth Amendment); see also United States v. Castro-
Aguirre, 983 F.3d 927, 935 (7th Cir. 2020).
While Carpenter now makes clear that law enforcement’s
reliance on a § 2703(d) order is insufficient to satisfy the
Fourth Amendment’s warrant requirement for the collection
14 No. 19-2357
of historical CSLI, 3 our decision in Curtis is equally clear that
the exclusionary rule does not apply where the government
relied in good faith on § 2703(d) prior to Carpenter. Id. at 848.
As a result, “even though it is now established that the Fourth
Amendment requires a warrant for the type of cell-phone data
present here, exclusion of that information [is] not required
because it was collected in good faith” reliance on § 2703(d).
Id. at 849. As we said in Castro-Aguirre, “[w]e are not inclined
to revisit Curtis,” and Hammond provides no argument to do
so. 983 F.3d at 935. Thus, the district court properly admitted
the historical CSLI obtained pursuant to the § 2703 order, “be-
cause the government, following the procedures set forth in
the Act, gathered it in good faith.” Id.
Hammond contends that the historical CSLI that Ghir-
inghelli collected, which we discuss below, tainted the CSLI
obtained pursuant to the § 2703(d) order. Hammond is mis-
taken. Though the government’s § 2703(d) application refer-
enced the partial records that the government already pos-
sessed due to the detective’s investigation, it did not rely on
those records. The application merely disclosed that “[p]artial
phone records for the target phone were obtained by Kalama-
zoo, Michigan Department of Public Safety investigators.”
The application did not rely on facts discovered due to those
records—for example, the application does not represent that
those records confirmed Hammond’s proximity to any one of
the robberies. Indeed, the above quoted sentence could be
3Although the Supreme Court decided Carpenter after the govern-
ment applied for and received the § 2703(d) order and received Ham-
mond’s records, Carpenter controls our analysis. See United States v. Maez,
960 F.3d 949, 954 (7th Cir. 2020) (“Current law governs our review on di-
rect appeal.”).
No. 19-2357 15
excised from the application without altering the quantum of
evidence before the magistrate judge showing that the histor-
ical CSLI was materially related to an ongoing criminal inves-
tigation. Accordingly, the historical CSLI obtained by Ghir-
inghelli did not taint the historical CSLI obtained via the
§ 2703(d) order. See Wong Sun v. United States, 371 U.S. 471,
487 (1963) (evidence from an “independent source” need not
be excluded).
ii. Historical CSLI Requested by Detective Ghiringhelli
We now turn to the historical CSLI collected by Detective
Ghiringhelli. While the prosecutor obtained Hammond’s his-
torical CSLI under § 2703(d) of the Stored Communications
Act, Detective Ghiringhelli relied on § 2702 of the Act, entitled
“Voluntary disclosure of customer communications or rec-
ords.” Unlike § 2703, § 2702 does not compel telecommunica-
tions carriers to provide records to law enforcement. Instead,
§ 2702 permits carriers to release records to a governmental
entity, “if the provider, in good faith, believes that an emer-
gency involving danger of death or serious physical injury to
any person requires disclosure without delay of information
relating to the emergency.” 18 U.S.C. § 2702(c)(4).
Regardless of the differences between §§ 2702 and 2703,
any alleged Fourth Amendment violation by Ghiringhelli’s
request for Hammond’s historical CSLI is a violation in want
of a remedy. Critically, the historical CSLI requested by Ghir-
inghelli was never introduced at trial, nor did it bear “fruit.”
See Wong Sun, 371 U.S. at 487. Investigators did not use this
subset of historical CSLI to locate Hammond himself or to lo-
cate any other evidence used against him. Thus, even if De-
tective Ghiringhelli violated Hammond’s Fourth Amendment
16 No. 19-2357
rights, the district court could not exclude evidence that was
never used or admitted in the first place.
We reiterate that the only historical CSLI introduced at
trial was the historical CSLI that the government obtained un-
der the magistrate judge’s order, not the detective’s § 2702 re-
quest to AT&T. As explained above, the latter did not taint the
former, because the § 2703(d) application did not rely on the
records obtained by Detective Ghiringhelli under § 2702 in
any substantive way.
In any event, the historical CSLI that the government ulti-
mately introduced at trial was also admissible under the in-
dependent source doctrine. “[T]he central question under the
independent source doctrine is whether the evidence at issue
was obtained by independent legal means.” United States v.
Bell, 925 F.3d 362, 370 (7th Cir. 2019) (quoting United States v.
May, 214 F.3d 900, 906 (7th Cir. 2000)). Here, the government
ultimately obtained Hammond’s historical CSLI based on a
good faith reliance on § 2703(d), independent from Detective
Ghiringhelli’s § 2702 request.
iii. Real-Time CSLI
Finally, we address the CSLI collected by Detective Ghir-
inghelli in real time, which officers used to physically locate
Hammond in Indiana. For the reasons explained below, we
agree with the government that the collection of Hammond’s
real-time CSLI did not constitute a search under the particular
circumstances of this case. 4
4 The district court believed that the government had conceded the
threshold question that the collection of Hammond’s real-time CSLI con-
stituted a search and that Carpenter would apply. The district court then
No. 19-2357 17
The “narrow” Carpenter decision did not determine
whether the collection of real-time CSLI constitutes a Fourth
Amendment search. 138 S. Ct. at 2220. There, the Court explic-
itly did “not express a view on matters not before [the
Court],” including “real-time CSLI.” Id.; see also United States
v. Green, 981 F.3d 945, 958 (11th Cir. 2020) (“The question of
whether acquiring [real-time tracking data] constitutes a
search was unanswered in 2013 and remains unanswered to-
day.”) (citing Carpenter, 138 S. Ct. at 2217–19, 2221); United
States v. Thompson, No. 13-40060-10-DDC, 2019 WL 3412304,
at *7 (D. Kan. July 29, 2019) (“And, extending Carpenter’s hold-
ing about the seizure of historical CSLI to the seizure of real-
time CSLI is far from clear because Carpenter emphasized that
historical CSLI allowed the government to learn of a person’s
whereabouts on a nearly 24-hour, seven-day-a-week basis.
Meanwhile, seizing CSLI in real-time only reveals a person’s
whereabouts at the moment of its seizure.”). 5
denied Hammond’s motion to suppress by relying on the good faith ex-
ception to the Fourth Amendment’s warrant requirement. See Curtis, 901
F.3d at 847–48. On appeal, the government clarifies that it did not concede
that the Fourth Amendment applies to Hammond’s real-time CSLI. To the
contrary, in its response to Hammond’s motion to suppress, the govern-
ment “accept[ed] for the sake of argument (without conceding) that real-
time data is subject to the same Fourth Amendment protections as histor-
ical data.”
5 We also have yet to answer this question post-Carpenter, or the re-
lated question of whether the use of a cell-site simulator to locate a suspect
is a search under the Fourth Amendment. See United States v. Patrick, 842
F.3d 540, 545 (7th Cir. 2016) (“Questions about whether use of a simulator
is a search, … have yet to be addressed by any United States court of ap-
peals. We think it best to withhold full analysis until these issues control
the outcome of a concrete case.”).
18 No. 19-2357
To answer this open question, we turn to the Supreme
Court’s jurisprudence pre-Carpenter. Before the ubiquity of
cell phones, the Court held in United States v. Knotts that law
enforcement agents did not conduct a “search” when they at-
tached a beeper to a drum of chloroform to track the chloro-
form’s (and the defendants’) movements. 460 U.S. 276 (1983).
There, the beeper only tracked the chloroform from its place
of purchase in Minnesota (where the manufacturer consented
to the installation of the beeper) to a secluded cabin in Wis-
consin where the defendants used it to manufacture illicit
drugs. Id. at 277–78. The Court reasoned that the defendant-
driver had no reasonable expectation in his privacy while
travelling on public roads:
A person travelling in an automobile on public thor-
oughfares has no reasonable expectation of privacy in
his movements from one place to another. When [the
suspect] travelled over the public streets he voluntarily
conveyed to anyone who wanted to look the fact that
he was travelling over particular roads in a particular
direction, the fact of whatever stops he made, and the
fact of his final destination when he exited from public
roads onto private property.
Id. at 281–82.
The Court took up the constitutionality of more modern
modes of tracking in United States v. Jones. There, the Court
decided that law enforcement’s attachment of a GPS unit to a
suspect’s car for twenty-eight days was a Fourth Amendment
search. United States v. Jones, 565 U.S. 400, 404 (2012). The ma-
jority grounded its analysis in common law trespass doctrine
and emphasized that the “[g]overnment physically occupied
No. 19-2357 19
private property for the purpose of obtaining information.”
Id.
Carpenter then answered a question that Jones left open—
whether a physical intrusion onto the defendant’s property
was necessary, and not just sufficient, to constitute a search. In
Carpenter, prosecutors sought a § 2703(d) order for the histor-
ical CSLI from the cell phones of several suspects in a series
of robberies in Michigan and Ohio in 2011. Carpenter, 138 S.
Ct. at 2212. The § 2703(d) application requested records span-
ning 127 days, as well as records for some shorter periods of
time. Id. Carpenter moved to suppress this evidence, but the
district court and the Court of Appeals for the Sixth Circuit
refused because “Carpenter lacked a reasonable expectation
of privacy in the location information collected by the FBI be-
cause he had shared that information with his wireless carri-
ers.” Id. at 2213.
Diverging from the Sixth Circuit’s analysis, the Carpenter
majority held that the third-party disclosure doctrine did not
apply to law enforcement’s collection of historical CSLI from
cell phone carriers. 6 138 S. Ct. at 2217. The Court refused to
extend the third-party disclosure doctrine to the “novel cir-
cumstances” presented by the case—namely, the govern-
ment’s harvesting of a “detailed chronicle of a person’s
6 The third-party disclosure doctrine ordinarily excludes from the
Fourth Amendment’s protections any information that that the defendant
has already shared with a third party, because “a person has no legitimate
expectation of privacy in information he voluntarily turns over to third
parties.” Id. at 2216 (quoting Smith v. Maryland, 442 U.S. 735, 743–44
(1979)).
20 No. 19-2357
physical presence compiled every day [and] every moment,
over [potentially] several years.” Id. at 2217, 2220.
Rejecting the third-party doctrine in the context of cell
phones, the Court reasoned that society simply does not ex-
pect that the police would be able to follow an individual’s
every movement for weeks at a time:
Prior to the digital age, law enforcement might have
pursued a suspect for a brief stretch, but doing so “for
any extended period of time was difficult and costly
and therefore rarely undertaken.” For that reason, “so-
ciety’s expectation has been that law enforcement
agents and others would not—and indeed, in the main,
simply could not—secretly monitor and catalogue
every single movement of an individual’s car for a very
long period.”
Allowing government access to cell-site records con-
travenes that expectation. … As with GPS information,
the time-stamped data provides an intimate window
into a person’s life, revealing not only his particular
movements, but through them his “familial, political,
professional, religious, and sexual associations.”
Carpenter, 138 S. Ct. at 2217. Accordingly, “[w]hether the Gov-
ernment employs its own surveillance technology as in Jones
or leverages the technology of a wireless carrier, … an indi-
vidual maintains a legitimate expectation of privacy in the
record of his physical movements as captured through CSLI.”
Id. Therefore, “an order issued under Section 2703(d) of the
[Stored Communications] Act is not a permissible mechanism
for accessing historical cell-site records.” Id. at 2221. Instead,
the government must obtain a warrant for historical CSLI.
No. 19-2357 21
Given that Carpenter disclaimed providing any answer to
the question before us, we consider whether the facts of this
case are more similar to Carpenter or to Knotts, and im-
portantly, how the principles and expectations that animated
those decisions play out in this case. Here, we are persuaded
that the unique facts of this case have more in common with
Knotts than Carpenter. And, although Carpenter rejected Knotts’
reasoning as applied to historical CSLI, we agree with the Sixth
Circuit that given the opinion’s limited holding, Carpenter
otherwise “left undisturbed [the Supreme Court’s] holding in
Knotts[.]” See United States v. Trice, 966 F.3d 506, 518 (6th Cir.
2020).
To review a few of the critical facts of this case, recall that
Ghiringhelli’s monitoring of Hammond’s location lasted only
a matter of hours–from roughly 6 p.m. on October 30 until
close to midnight, when officers were able to physically fol-
low Hammond without the aid of the CSLI pings. This is very
different from the 127 days of monitoring at issue in Carpenter
and more similar to the monitoring of the discrete car trip at
issue in Knotts. Furthermore, Ghiringhelli’s real-time CSLI re-
quest only collected location data that Hammond had already
exposed to public view while he travelled on public, interstate
highways and into parking lots within the public’s view. See
Knotts, 460 U.S. at 281–82; see also Cardwell v. Lewis, 417 U.S.
583, 590 (1974) (plurality op.) (“A car has little capacity for es-
caping public scrutiny.”).
Crucially, unlike in Carpenter, the record of Hammond’s
(and Knotts’) movements for a matter of hours on public
roads does not provide a “window into [the] person’s life, re-
vealing … his familial, political, professional, religious, and
sexual associations” to the same, intrusive degree as the
22 No. 19-2357
collection of historical CSLI. Carpenter, 138 S. Ct. 2217 (internal
quotations omitted). Law enforcement used the real-time
CSLI to find Hammond’s location in public, not to peer into
the intricacies of his private life. The records here and in Knotts
do not suggest that law enforcement used either the real-time
CSLI or the beeper to examine the defendants’ movements in-
side of a home or other highly protected area. And, Ham-
mond does not argue that he was in private areas during this
time period. In Carpenter, law enforcement’s surveillance be-
came a “search” because the surveillance followed Carpenter
long enough to follow him into, and record, his private life.
But here, and in Knotts, law enforcement only followed Ham-
mond on public roads, for the duration of one car trip. See also
United States v. Skinner, 690 F.3d 772, 780–81 (6th Cir. 2012)
(distinguishing “comprehensive tracking” from the collection
of real-time CSLI to merely locate a drug-trafficking suspect)
(superseded by statute on other grounds).
The Carpenter majority was particularly concerned with
the “retrospective quality” of the data that law enforcement
collected about Carpenter’s movements. See 138 S. Ct. at 2218.
“[T]he retrospective quality of the data here gives police ac-
cess to a category of information otherwise unknowable. In
the past, attempts to reconstruct a person’s movements were
limited by a dearth of records and the frailties of recollection.”
Id. The real-time CSLI collected in this case does not have the
same “retrospective quality” of the historical CSLI in Carpen-
ter and again, is much more akin to the beeper data in Knotts.
Real-time CSLI collected over the course of several hours
simply does not involve the same level of intrusion as the col-
lection of historical CSLI.
No. 19-2357 23
Furthermore, one of the aggravating considerations in
Carpenter was that the historical CSLI contravened society’s
expectations not only of their own privacy, but also of law en-
forcement’s capabilities. Carpenter recognized that “[p]rior to
the digital age, law enforcement might have pursued a sus-
pect for a brief stretch[.]” Id. at 2217. The collection of histori-
cal CSLI in Carpenter was different because it would be too
costly and difficult to follow a suspect for over four months.
See id. As a result, “society’s expectation has been that law en-
forcement agents and others would not—and indeed, in the
main, simply could not—secretly monitor and catalogue
every single movement of an individual’s car for a very long
period.” Id. But here, as in Knotts, the “government surveil-
lance … amounted principally to the following of an automo-
bile on public streets and highways.” Knotts, 460 U.S. at 281.
And in this case, society is fully aware that officers may follow
and track a suspect’s movements for several hours. In sum,
law enforcement’s ability to locate Hammond on public roads
for a six-hour period using real-time CSLI is not inconsistent
with society’s expectations of privacy from law enforcement’s
prying eyes. See Carpenter, 138 S. Ct. at 2217.
Our conclusion here is buttressed by our decision in United
States v. Patrick, where we held that the government did not
violate the Fourth Amendment when officers used a cell-site
simulator 7 to locate a suspect for whom officers had probable
7 The Department of Justice Policy Guidance at the time defined a cell-
site simulator as follows:
A cell-site simulator receives and uses an industry standard
unique identifying number assigned by a device manufacturer or
cellular network provider. When used to locate a known cellular
device, a cell-site simulator initially receives the unique
24 No. 19-2357
cause and two warrants (one for his arrest and one that “au-
thorized [officers] to locate [the defendant] using cell-phone
data”). 842 F.3d 540, 542, 545 (7th Cir. 2016). There, the de-
fendant attempted to challenge the “validity of the location-
tracking warrant by contending that his person was not con-
traband or the proceeds of a crime.” Id. at 542. But we rea-
soned that officers “were entitled to arrest him without a war-
rant of any kind, let alone the two warrants they had … [be-
cause] probable cause alone is enough for an arrest in a public
place.” Id. (citing United States v. Watson, 423 U.S. 411 (1976)).
A person wanted on probable cause (and an arrest war-
rant) who is taken into custody in a public place, where
he had no legitimate expectation of privacy, cannot
complain about how the police learned his location.
Recall that the cell-site simulator (unlike the GPS de-
vice in Jones) was not used to generate the probable
cause for arrest; probable cause to arrest Patrick pre-
dated the effort to locate him. … A fugitive cannot be
picky about how he is run to ground. So it would be
inappropriate to use the exclusionary rule[.]
Id. at 545.
identifying number from multiple devices in the vicinity of the
simulator. Once the cell-site simulator identifies the specific cellu-
lar device for which it is looking, it will obtain the signaling infor-
mation relating only to that particular phone. When used to iden-
tify an unknown device, the cell-site simulator obtains signaling
information from non-target devices in the target’s vicinity for the
limited purpose of distinguishing the target device.
Patrick, 842 F.3d at 543 (citing Department of Justice Policy Guidance: Use
of Cell–Site Simulator Technology (Sept. 3, 2015) at 2).
No. 19-2357 25
While we acknowledge that Patrick’s facts and the legal
landscape in which it was decided differ from the facts and
legal landscape of this case, Patrick is still persuasive. Here,
the district court found, and we agree, that the law enforce-
ment officers involved in this case collectively had probable
cause to arrest Hammond. See United States v. Smith, 989 F.3d
575, 582 (7th Cir. 2021) (collective knowledge doctrine “per-
mits a stop at the direction of, or based on information relayed
from, another law enforcement agency”) (citing United States
v. Khan, 937 F.3d 1042, 1052 (7th Cir. 2019)). “Police officers
possess probable cause to arrest when the facts and circum-
stances within their knowledge and of which they have rea-
sonably trustworthy information are sufficient to warrant a
prudent person in believing that the suspect has committed
an offense.” United States v. Haldorson, 941 F.3d 284, 290–91
(7th Cir. 2019) (quoting United States v. Howard, 883 F.3d 703,
707 (7th Cir. 2018)). As summarized by the district court:
Collectively, the officers knew that a white male had
committed several armed robberies; that the gun the
robber had used in the earlier robberies traced back to
a person named “Rex”; that “Rex’s” phone number be-
longed to Rex Hammond; that Rex Hammond had sev-
eral previous convictions for armed robberies; that the
person described by Rex Hammond’s driver’s license
was consistent with the race, height, weight, and build
of the robber shown in the various videos; and that a
car similar to what the videos suggested was the geta-
way car in the robberies was registered to Mr. Ham-
mond.
Reviewing the totality of these circumstances, we have no
trouble agreeing with the district court that the officers had
26 No. 19-2357
probable cause to arrest Hammond. See id. at 291 (analyzing
probable cause under the totality of the circumstances).
Although Ghiringhelli did not seek a warrant, the fact that
officers had probable cause to arrest Hammond is still rele-
vant to the question of whether society is prepared to recog-
nize Hammond’s subjective expectation of privacy as “rea-
sonable.” See Carpenter, 138 S. Ct. at 2217. We conclude that
his expectation of privacy was not reasonable in light of these
facts. Cf. United States v. Riley, 858 F.3d 1012, 1018 (6th Cir.
2017) (per curiam) (holding that the use of seven hours of GPS
location data to locate a suspect for whom a valid search war-
rant had been issued was not a search “so long as the tracking
[did] not reveal movements within the home (or hotel room),
[did] not cross the sacred threshold of the home.”) (emphasis
in original).
It is also critical to acknowledge the stakes of what was
essentially a slow-speed car chase here: Officers were pursu-
ing an individual suspected of committing at least five suc-
cessful armed robberies and two attempted armed robberies
within a short period of time. The suspect had thus already
committed several, violent felonies and was likely to do so
again. Officers had reason to believe he was armed (he was)
and likely to attempt another armed robbery (he intended
to). 8
To conclude, we hold that Detective Ghiringhelli did not
conduct a Fourth Amendment “search” by requesting the
real-time CSLI of a suspect for multiple armed robberies, for
8
Recall that Hammond’s passenger, Latendresse told officers that
Hammond told her that they were “going to get some money.”
No. 19-2357 27
whom officers had probable cause, where the officers only
collected real-time CSLI for a matter of hours while the sus-
pect travelled on public roadways, and law enforcement lim-
ited its use of the CSLI to the purpose of finding the armed
suspect who they had reason to believe was likely to engage
in another armed robbery. Hammond’s purported, subjective
expectation of privacy under these circumstances is not one
“that society is prepared to recognize as ‘reasonable.’” See
Katz, 389 U.S. at 361. We stress that this holding, like that of
Carpenter, is narrow and limited to the particular facts of this
case.
As a result of this conclusion, none of the evidence stem-
ming from Hammond’s October 31 arrest must be sup-
pressed: the collection of his real-time CSLI was not a search;
the resulting traffic stop was valid under Whren v. United
States, 517 U.S. 806 (1996); officers read Hammond his Miranda
rights prior to his verbal statements, Miranda v. Arizona, 384
U.S. 436 (1966); and the physical evidence recovered from the
car was discovered pursuant to a valid search warrant, United
States v. Clemens, 58 F.3d 318, 321 (7th Cir. 1995). Thus, we also
find no constitutional infirmity with the officers’ actions after
they had located Hammond (and Hammond does not iden-
tify any such infirmity).
iv. Good Faith Exception
In the alternative, although we have concluded that the
collection of Hammond’s real-time CSLI was not a search, we
also hold that the evidence collected as a result of his arrest
should not be suppressed because law enforcement collected
Hammond’s real-time CSLI in good faith reliance on 18 U.S.C.
§ 2702. See Krull, 480 U.S. at 357 (extending Leon’s good faith
exception to officer’s good faith reliance on a then-
28 No. 19-2357
constitutional statute); Davis, 564 U.S. at 232 (extending good
faith exception to reliance on binding circuit precedent). At
bottom, “exclusion is not appropriate where ‘the police act
with an objectively reasonable good-faith belief that their con-
duct is lawful.’” United States v. Kienast, 907 F.3d 522, 527 (7th
Cir. 2018), cert. denied, 139 S. Ct. 1639 (2019) (quoting Davis,
564 U.S. at 238 (2011)); see also United States v. Rainone, 816 F.3d
490 (7th Cir. 2016).
Section 2702(c)(4) permits telephone carriers to release
records to a governmental entity, “if the provider, in good
faith, believes that an emergency involving danger of death
or serious physical injury to any person requires disclosure
without delay of information relating to the emergency.”
Here, the district court credited Detective Ghiringhelli’s
testimony that he had a “good faith belief that an emergency
was at hand.”
The robber thought to be Mr. Hammond had entered
several places the public visits to shop and did so with
his finger on (or at least adjacent to) the trigger. The
timing of the previous robberies supported at least a
strong possibility that another robbery would occur
soon. Detective Ghiringhelli also was troubled by the
video in which the robber set the handgun on the coun-
ter to collect money; Detective Ghiringhelli viewed
that as unsafe handling of a firearm, which could pose
a further risk to the public.
Detective Ghiringhelli believed in good faith that a fed-
eral statute allowed him to act as he did, based on what
he (and AT&T) believed to be an emergency, rather
No. 19-2357 29
than obtaining a warrant. Application of an exclusion-
ary rule is unnecessary under those circumstances.
While we review the district court’s legal conclusion that De-
tective Ghiringhelli relied in good faith on § 2702 de novo, we
review the district court’s factual findings for clear error.
Edgeworth, 889 F.3d at 353. Given that Detective Ghiringhelli
saw the suspect haphazardly handling his weapon, and even
had his finger on the trigger of the weapon upon entering the
stores he robbed, we cannot conclude that the district court’s
factual findings regarding a pending emergency—that there
was a strong possibility of another robbery and that the detec-
tive was alarmed at the suspect’s handling of his weapon—
were clearly erroneous. See Thurman, 889 F.3d at 363.
We also agree with the district court’s legal conclusion that
Detective Ghiringhelli reasonably relied on § 2702 of the
Stored Communications Act in requesting Hammond’s real-
time CSLI. At the time of the detective’s request, Carpenter had
not yet explained the Supreme Court’s concerns regarding the
use of historical CSLI, let alone real-time CSLI. Indeed, alt-
hough we had not yet opined on the issue, both the Eleventh
and Fifth Circuits had affirmatively held that defendants did
not have a reasonable expectation of privacy in their historical
CSLI. See United States v. Daniels, 803 F.3d 335, 351 (7th Cir.
2015); United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en
banc); In re United States for Historical Cell Site Data, 724 F.3d
600 (5th Cir. 2013).
Finally, our conclusion that Detective Ghiringhelli reason-
ably relied on the statutory authority of § 2702 is further rein-
forced by our decision in Patrick. There, we said that a suspect
“wanted on probable cause” could not “complain about how
the police learned his location.” 842 F.3d at 545. We further
30 No. 19-2357
explained that from the defendant’s perspective, “it is all the
same whether a paid informant, a jilted lover, police with bin-
oculars, a bartender, a member of a rival gang, a spy trailing
his car after it left his driveway, the phone company’s cell towers,
or a device pretending to be a cell tower, provided the loca-
tion information.” Id. (emphasis added). Thus, pre-Carpenter,
it also would have been reasonable for Ghiringhelli to rely on
this binding circuit precedent in locating Hammond with his
real-time CSLI. See Davis, 564 U.S. at 232.
B. Felon-in-Possession Jury Instruction
Hammond next argues that he is entitled to a new trial on
his conviction for being a felon in possession of a firearm
based on the Supreme Court’s recent decision in Rehaif. 139 S.
Ct. at 2200. “Before Rehaif, the federal courts of appeals had
all held that [18 U.S.C.] § 922(g) required the government to
prove a defendant knowingly possessed a firearm or ammu-
nition, but not that the defendant knew he or she belonged to
one of the prohibited classes.” United States v. Maez, 960 F.3d
949, 953 (7th Cir. 2020) (citing United States v. Williams, 946
F.3d 968, 970 (7th Cir. 2020)). Rehaif “reached a different con-
clusion, holding that the statute requires the government to
‘show that the defendant knew he possessed a firearm and also
that he knew he had the relevant status when he possessed
it.’” Id. (quoting Rehaif, 139 S. Ct. at 2194) (emphasis added).
At trial, Hammond stipulated to the fact that he was a con-
victed felon at the time of his crimes under Old Chief v. United
States, but not that he knew that he was a felon, as required
by Rehaif. See 519 U.S. 172, 190 (1997) (holding that the gov-
ernment could not offer evidence about the details of a de-
fendant’s prior conviction to prove the prior felony element
of § 922(g) if the defendant offered to stipulate to the fact of
No. 19-2357 31
his prior felony conviction). In addition, the jury instructions
reflected the pre-Rehaif understanding of § 922(g)’s require-
ments, but not Rehaif’s additional knowledge-of-status ele-
ment. After the Supreme Court decided Rehaif in June 2019,
Hammond moved the district court to vacate his felon-in-pos-
session conviction and requested a new trial with a jury in-
structed on the offense as defined by Rehaif. Applying a harm-
less error analysis, the district court denied relief. The district
court reasoned that if it ordered a new trial, one of two things
would occur: Either the government would introduce evi-
dence of Hammond’s five prior felonies (including convic-
tions for armed robbery), or (more likely) Hammond would
stipulate to his knowledge of his felon status. Either way, the
lack of a Rehaif-compliant instruction was harmless, because
no reasonable jury would fail to convict Hammond in a sec-
ond trial.
Hammond maintains that the district court erred in deny-
ing his motion and insists again that he is entitled to a new
trial, with a jury properly instructed as to the post-Rehaif ele-
ments of § 922(g).
1. Standard of Review
To challenge the trial court’s jury instructions, Federal
Rule of Criminal Procedure 30 requires that the parties object
to the jury instructions “before the jury retires to deliberate. …
Failure to object in accordance with this rule precludes appel-
late review, except as permitted under Rule 52(b).” Ham-
mond did not object to the § 922(g) instruction prior to the
jury retiring, so we review the district court’s instructions for
plain error. See Fed. R. Crim. P. 30, 52(b); see also Maez, 960
F.3d at 956 (2020) (“Failing to raise an objection to the jury in-
structions before deliberations start precludes appellate
32 No. 19-2357
review, except as permitted under Rule 52(b).”) (internal quo-
tations omitted) (citing Johnson v. United States, 520 U.S. 461,
464–66 (1997) (applying plain error review to jury instructions
rendered incomplete by an intervening decision issued post-
conviction)).
In Maez, we considered the appropriate remedy (and
standard of review) for three defendants, who, like Ham-
mond, were convicted of violating § 922(g) prior to Rehaif who
asked us to vacate their sentences in light of Rehaif. 960 F.3d
at 953. Like Hammond, each of the defendants stipulated to
his prior conviction, but the jury did not hear any evidence
regarding any defendant’s knowledge of his felon status. Id.
And the district court instructed the jury using the pre-Rehaif
§ 922(g) elements. Id. We applied plain error review and up-
held the Maez defendants’ convictions, as discussed more
fully below. Hammond contends that his case is distinguish-
able from the defendants’ cases in Maez because, unlike the
Maez defendants, the district court had not yet sentenced him
when the Supreme Court decided Rehaif in June 2019. (Ham-
mond was tried in April 2019 and sentenced that July.) We see
no reason to treat Hammond differently than the defendants
in Maez. In reviewing objections to a trial court’s jury instruc-
tions, the critical event is not when the defendant’s conviction
became final upon sentencing, but when the “jury retires to
deliberate.” See Fed. R. Crim. P. 30(d). Here, Hammond did
not object to the jury instructions before the jury retired, so we
review for plain error only.
Hammond resists this conclusion by cherry-picking a sen-
tence from Maez in which we observed that “[i]f Rehaif had
come down while these cases remained in the district courts,
it would have been an abuse of discretion for a judge to refuse
No. 19-2357 33
to consider an untimely challenge to the indictment based on
Rehaif.” 960 F.3d at 957. Hammond’s reliance on this sentence
is misplaced. Hammond lifts this quote from a section of the
opinion dedicated to defective indictments, not jury instruc-
tions. But when discussing the standard of review for incom-
plete jury instructions, the opinion relies on Rules 30 and
52(b) and applies Rule 52(b)’s plain error standard. Id. at 956
(citing Johnson, 520 U.S. at 464–66). Thus, we will review for
plain error as we did in Maez.
2. Analysis
Having concluded that plain error review applies, we re-
view the district court’s instructions for “(1) ‘error,’ (2) that is
‘plain,’ and (3) that ‘affect[s] substantial rights.’ If all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
‘seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.’” Maez, 960 F.3d at 956 (quoting John-
son, 520 U.S. at 466–67; United States v. Olano, 507 U.S. 725, 732
(1993)).
The government concedes, and we agree, that the district
court plainly erred in instructing the jury on the elements of
the § 922(g) offense in light of Rehaif. Although we do not fault
the district court for failing to anticipate Rehaif’s holding,
“[c]urrent law governs our review on direct appeal, including
any issues reviewed for plain error. This principle applies
with full force where an intervening decision has effectively
added an element to a crime.” Id. at 954 (citing Henderson v.
United States, 568 U.S. 266, 276–77 (2013); Johnson, 520 U.S. at
467–68).
34 No. 19-2357
In Maez, we joined the Second Circuit in holding that the
third prong of the plain error analysis—whether the error af-
fected the defendant’s substantial rights—must be analyzed
based only on the trial record, and not on any materials not
before the jury. Id. at 960–61 (citing United States v. Miller, 954
F.3d 551 (2d Cir. 2020)).
This restriction to the jury record flows logically from
the nature of a substantial-rights inquiry on direct re-
view. The more abstract question of the defendant’s ac-
tual guilt or innocence is not the issue. Rather, the ap-
pellate court asks what effect the error could have had
on the verdict in the trial actually conducted.
Id. at 961.
Here, the trial record is light on whether Hammond sub-
jectively knew of his felon status. Some jurors could certainly
conclude that someone who had been convicted of a felony,
as stipulated by Hammond, would know they were convicted
of a felony. The only other evidence supporting this inference
was that Hammond bought his weapons from Forsythe. Ar-
guably, these purchases indicate that Hammond was trying
to avoid the inquiries that a licensed gun dealer would have
made, because he knew he was unable to legally possess a
gun.
Even if Hammond has satisfied the first three prongs of
the plain error analysis, however, we “retain[] discretion to
leave an error uncorrected.” Id. at 962 (citing Olano, 507 U.S.
at 735). “A court should exercise its discretion at the fourth
prong only if ‘the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.’” Id. (quoting
Olano, 507 U.S. at 736). “In sum, we have broad discretion
No. 19-2357 35
under prong four to leave even plain errors uncorrected
where we have no doubt as to the ultimate result of further
proceedings.” Id. at 963. At this stage of the analysis, our dis-
cretion “implies some power to look beyond the trial record
to assess an error’s effect.” Id. (citing Miller, 954 F.3d at 559–
60). Still, “we confine our inquiry to the trial records and a
narrow category of highly reliable information outside the
trial records: the defendants’ prior offenses and sentences
served in prison, as reflected in undisputed portions of their
PSRs [Pre-Sentence Investigation Reports].” Id. And, “if we
are confident that the error in the jury instructions does not
create a miscarriage of justice, we may decline to exercise our
discretion to remand for a new trial.” United States v. Pulliam,
973 F.3d 775, 781 (7th Cir. 2020).
Here, Hammond had several prior felony convictions, in-
cluding other armed robberies, for which he received dec-
ades-long sentences. As in Maez, “[t]here is no doubt that a
jury permitted to hear such evidence would find [the defend-
ant] knew his felon status.” Maez, 960 F.3d at 966, see also
United States v. Mancillas, 789 F. App’x 549, 550 (7th Cir. 2020)
(describing nine prior felonies as “a number [of felonies] that
itself renders a lack of awareness all but impossible.”). Ac-
cordingly, the incomplete § 922(g) instruction did not result
in a miscarriage of justice, and we exercise our discretion not
to correct the district court’s unknowing error.
C. Hobbs Act Robbery and Crimes of Violence under
18 U.S.C. § 924(c)
Third, Hammond asks the Court to reverse his convictions
for brandishing a firearm during a crime of violence under
18 U.S.C. § 924(c), because he maintains that Hobbs Act rob-
bery is not a crime of violence under the statutory definition.
36 No. 19-2357
Hammond raises this argument for this first time on appeal,
so we review only for plain error. Fed. R. Crim. P. 52(b);
United States v. Wehrle, 985 F.3d 549, 556 (7th Cir. 2021).
Beginning with the statute, § 924(c) imposes a mandatory
minimum sentence of five years in prison on “any person
who, during and in relation to any crime of violence … for
which the person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A)(i).
“[I]f the firearm is brandished,” the defendant is subject to a
mandatory minimum term of seven years in prison. Id. at
§ 924(c)(1)(A)(ii). The critical inquiry is therefore what consti-
tutes a “crime of violence.”
For purposes of this subsection the term “crime of vio-
lence” means an offense that is a felony and—
(A) has as an element the use, attempted use, or threat-
ened use of physical force against the person or prop-
erty of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of an-
other may be used in the course of committing the of-
fense.
Id. at § 924(c)(3)(A)–(B). Courts refer to subsection A as the
“elements clause,” while subsection B is the “residual clause.”
See United States v. Davis, 139 S. Ct. 2319, 2324 (2019).
Hammond acknowledges that we previously decided that
Hobbs Act robbery, under 18 U.S.C. § 1951, is a crime of vio-
lence under the elements clause of § 924(c), but he urges us to
revisit the issue in light of recent Supreme Court precedent
No. 19-2357 37
invalidating related criminal statutes, including the residual
clause of § 924(c).
Hammond’s challenge comes on the heels of a trilogy of
recent Supreme Court decisions that have cast aside “residual
clauses” in federal criminal statutes: In Johnson v. United
States, 135 S. Ct. 2551 (2015), the Court invalidated another
provision of 18 U.S.C. § 924, specifically, subsection
(e)(2)(B)(ii) of the Armed Career Criminal Act. That subsec-
tion defined “violent felonies” to include crimes involving
“conduct” presenting “a serious potential risk of physical in-
jury to another.” The Court reasoned that the “indeterminacy
of the wide-ranging inquiry required by the residual clause
[of § 924(e)(2)(B)(ii)] both denies fair notice to defendants and
invites arbitrary enforcement by judges. Increasing a defend-
ant’s sentence under the clause denies due process of law.” Id.
at 2557. The Court stayed this course in 2018 in holding that
the statutory definition of a “crime of violence” under 18
U.S.C. § 16 9 was similarly unconstitutionally vague so as to
deny a criminal defendant due process. See Sessions v. Dimaya,
138 S. Ct. 1204 (2018). Finally, in 2019, the Court struck down
the residual clause of the statute at issue here, § 924(c)(3)(B),
9 The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use,
or threatened use of physical force against the person or prop-
erty of another, or
(b) any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the per-
son or property of another may be used in the course of com-
mitting the offense.
18 U.S.C.A. § 16.
38 No. 19-2357
as unconstitutionally vague. See Davis, 139 S. Ct. at 2336. Crit-
ically, Davis attacked the constitutionality of this subsection’s
residual clause, but it left the elements clause, § 924(c)(3)(A),
intact.
Based on Johnson, Dimaya, and Davis, Hammond urges this
Court to find that Hobbs Act robbery is not a crime of violence
under the elements clause, § 924(c)(3)(A). Hammond reasons
that “Hobbs Act robbery can be committed by causing fear of
future injury to property,” but fear of future injury to prop-
erty does not require the use or threat of any physical force as
required by the elements clause.
We squarely decided this issue in United States v. Anglin in
holding that Hobbs Act robbery is a “‘crime of violence’
within the meaning of” the elements clause of § 924(c)(3)(A).
846 F.3d 954, 965 (7th Cir. 2017) (sentence vacated by 138 S.
Ct. 126 (Mem.) on other grounds; conviction confirmed as
valid post-remand from the Supreme Court in 704 F. App’x
596 (Mem.)). “In so holding, we join[ed] the unbroken consen-
sus of other circuits to have resolved this question.” Id. (empha-
sis added) (collecting cases).
We reviewed this same question again in Rivera and
reached the same conclusion: “[O]ne cannot commit Hobbs
Act robbery without using or threatening force.” United States
v. Rivera, 847 F.3d 847, 849 (2017); see also United States v.
Brown, 973 F.3d 667, 697 (7th Cir. 2020) (rejecting argument
that Hobbs Act robbery is not a crime of violence). And, in a
non-precedential order in 2019, we characterized an argu-
ment that Hobbs Act robbery is not a crime of violence (the
argument Hammond makes here) as “frivolous” given that
“we have confirmed that a Hobbs Act robbery is a crime of
No. 19-2357 39
violence under the still-valid ‘elements clause’ of § 924(c).”
United States v. Fox, 783 F. App’x 630, 632 (7th Cir. 2019).
Moreover, this Court and our sister courts have consist-
ently held that Davis’s invalidation of the residual clause of
§ 924(c) did not affect the continued constitutionality of the
elements clause. See United States v. Thomas, 933 F.3d 685, 695,
n.5 (7th Cir. 2019) (“The Supreme Court has now invalidated
subparagraph (B)—the residual clause—as unconstitutionally
vague. That decision does not affect this case. The bank-rob-
bery count is covered by subparagraph (A).”); see also United
States v. Dixon, 799 F. App’x 308, 309 (5th Cir. 2020) (“Davis
held that the residual clause is unconstitutionally vague, but
the elements clause remains intact.”); United States v. Kayarath,
822 F. App’x 786, 790 (10th Cir. 2020) (“In sum, [this court has]
held [that] Hobbs Act robbery satisfies § 924(c)’s elements
clause and is thus categorically a crime of violence for pur-
poses of that provision. [The defendant’s] arguments chal-
lenging this holding have been consistently rejected, and the
Supreme Court’s decision in Davis, on which [the defendant]
relied for authorization to commence this proceeding, does
not call it into question.”); Levatte v. United States, 805 F. App’x
658, 660 (11th Cir. 2020).
We decline Hammond’s invitation to revisit our decisions
in Anglin, Rivera, and Brown. Hammond has not presented
any new arguments regarding the continued validity of the
elements clause of § 924(c) and its inclusion of Hobbs Act rob-
bery in the definition of a “crime of violence” that would war-
rant departing from our precedents and the unanimous con-
clusion of our sister circuits. Accordingly, the district court
did not err in putting Hammond’s § 924(c) charges to the jury
40 No. 19-2357
and sentencing him accordingly when the jury found Ham-
mond guilty of both counts.
D. The Career Offender Enhancement of the Sentencing
Guidelines
Finally, Hammond disputes the district court’s adoption
of the presentence investigation report (“PSR”), to the extent
that it classified him as a career offender under United States
Sentencing Guideline § 4B1.1, for committing the instant of-
fense of Hobbs Act robbery and two prior violent felony of-
fenses.
Section 4B1.1 classifies a defendant as a “career offender”
if:
(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a fel-
ony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least
two prior felony convictions of either a crime of vio-
lence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). If a defendant is so classified, the Guide-
lines assign substantially elevated offense levels to the de-
fendant. In this case, without the career offender enhance-
ment, Hammond’s offense level was 34. This would have re-
sulted in a Guidelines range of 235 to 293 months in prison,
based on his category V criminal history. But because the pro-
bation officer found Hammond qualified for the career of-
fender enhancement under § 4B1.1 (and he did not accept re-
sponsibility for his crimes under § 3E1.1), he was subject to a
Guidelines recommended range of 360 months to life in
prison.
No. 19-2357 41
Hammond contends that the district court erred as a mat-
ter of law in accepting the probation officer’s application of
the career offender enhancement to his case, because Hobbs
Act robbery cannot be a crime of violence under § 4B1.2(a).
Section 4B1.2(a) defines a “crime of violence” as:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year that—
(1) has as an element the use, attempted use, or threat-
ened use of physical force against the person of an-
other, or
(2) is murder, voluntary manslaughter, kidnapping,
aggravated assault, a forcible sex offense, robbery, ar-
son, extortion, or the use or unlawful possession of a
firearm described in 26 U.S.C. § 5845(a) or explosive
material as defined in 18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a). Subsection (1) is referred to as the “use of
force” clause; subsection (2) is referred to as the “enumerated
offenses” clause. Here, the government concedes that Hobbs
Act robbery does not qualify under the Guidelines’ use of
force clause. So, Hammond turns to the enumerated offenses
clause and argues that Hobbs Act robbery criminalizes more
conduct than generic robbery or extortion do, so, under the
categorical approach, Hobbs Act robbery does not qualify as
a crime of violence under the enumerated offenses clause ei-
ther. See United States v. Maxwell, 823 F.3d 1057, 1060 (7th Cir.
2016) (applying the categorical approach to determine
whether the defendant’s prior conviction qualified as a crime
of violence under § 4B1.1).
We recently joined four of our sister circuits in deciding
that Hobbs Act robbery cannot be the predicate crime of
42 No. 19-2357
violence for § 4B1.1’s career offender enhancement. See
Bridges v. United States, 991 F.3d 793 (7th Cir. 2021); see also
United States v. Eason, 953 F.3d 1184 (11th Cir. 2020); United
States v. Rodriguez, 770 F. App’x 18 (3d Cir. 2019), cert. denied,
140 S. Ct. 843 (2020); United States v. Camp, 903 F.3d 594 (6th
Cir. 2018), cert. denied, 139 S. Ct. 845 (2019); United States v.
O’Connor, 874 F.3d 1147 (10th Cir. 2017).
Here, the Defendant forfeited this argument by failing to
bring the question before the district court in the first instance.
On plain error review, we find that the district court’s sen-
tence was not impacted by the Guidelines, and we therefore
affirm Hammond’s sentence.
1. Forfeiture and Waiver
Hammond acknowledges that he did not raise this argu-
ment below and asks us to review his sentence, and the dis-
trict court’s application of the Guidelines’ career offender en-
hancement, for plain error. The government counters that
Hammond waived the argument, extinguishing all appellate
review.
“Waiver is the intentional relinquishment of a known
right. … Forfeiture is the failure to timely assert a right.”
United States v. Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir. 2005).
The line between waiver and forfeiture can be “blurry.”
United States v. Young, 908 F.3d 241, 246 (7th Cir. 2018). To
waive an argument on appeal, a defendant must have had
some strategic reason for waiving the argument in the trial
court. See, e.g., United States v. Jenkins, 772 F.3d 1092, 1096 (7th
Cir. 2014). “[T]he waiver principle is construed liberally in fa-
vor of the defendant” and this court is “cautious about inter-
preting a defendant’s behavior as intentional
No. 19-2357 43
relinquishment.” United States v. Barnes, 883 F.3d 955, 957 (7th
Cir. 2018). Accordingly, we have required something more
than just a defendant’s failure to object to some part of the PSR
to find that the defendant waived an argument on appeal. See
Young, 908 F.3d at 246–47 (finding waiver where trial counsel
had “emphasized repeatedly…[that he] made a strategic de-
cision to stipulate to fraudulent conduct”); Barnes, 883 F.3d at
958 (finding waiver where the defendant “had a targeted
strategy [whereby he] focused exclusively on his criminal his-
tory category and raised a single objection to it.”); United
States v. Fuentes, 858 F.3d 1119, 1121 (7th Cir. 2017) (finding
waiver where the defendant “explicitly agreed to the [sen-
tencing] enhancement in his written plea agreement”).
Here, Hammond’s trial counsel lodged several objections
to the PSR, including to various sentencing enhancements for
Hammond’s use of a firearm. In his sentencing memoran-
dum, Hammond recognized the powerful impact of Ham-
mond’s classification as a career offender under § 4B1.1 of the
Sentencing Guidelines—counsel acknowledged that even if
the court were to agree “with all of his sentence enhancement
objections, it would not likely change the outcome of his sen-
tence because he qualifies as a Career Offender under U.S.S.G.
§ 4B1.1.” Yet counsel did not object to the career offender clas-
sification and stated at the sentencing hearing that he had
made all of his objections.
Keeping in mind that “[t]he touchstone of waiver is a
knowing and intentional decision,” Jaimes-Jaimes, 406 F.3d at
848, defense counsel’s sentencing memorandum and his ex-
change with the district court do not support a finding that
trial counsel intentionally waived Hammond’s career of-
fender argument. Trial counsel’s conduct does not reveal a
44 No. 19-2357
strategy, or intent, for waiving the § 4B1.1 objection. To the
contrary, trial counsel’s acknowledgement that all of his other
objections would not impact Hammond’s Guidelines range in
the face of the § 4B1.1 enhancement demonstrates that he had
no strategy for failing to object to that particular enhance-
ment. “We can conceive of no reason why [the defendant]
would have intentionally relinquished an objection certain to
result in a lower … sentencing range, nor has the government
offered one.” Jenkins, 772 F.3d at 1096. “If the government can-
not proffer any strategic justification for a defendant’s omis-
sion, we will presume an inadvertent forfeiture rather than an
intentional relinquishment.” United States v. Robinson, 964
F.3d 632, 642 (7th Cir. 2020) (quoting United States v. Moody,
915 F.3d 425, 429 (7th Cir. 2019)). Finally, it is worth noting
that we only recognized that Hammond’s argument that
Hobbs Act robbery is not a crime of violence under the Guide-
lines as “not frivolous” as of July 1, 2019, just fourteen days
before Hammond’s sentencing. See United States v. Tyler, 780
F. App’x 360, 363 (7th Cir. 2019). For these reasons, we con-
clude that Hammond forfeited, rather than waived, his
§ 4B1.1 argument.
2. Plain Error Analysis
“Normally we review a district court’s application of the
Sentencing Guidelines de novo.” United States v. Garrett, 528
F.3d 525, 527 (7th Cir. 2008) (citing United States v. Samuels,
521 F.3d 804, 815 (7th Cir. 2008)). But because Hammond for-
feited his argument by failing to raise it before the district
court, we review for plain error. Id.
As noted above, the district court commits plain error
when there is “(1) an error or defect, (2) that is clear or obvious
(3) affecting the defendant’s substantial rights (4) and
No. 19-2357 45
seriously impugning the fairness, integrity, or public reputa-
tion of judicial proceedings.” United States v. Goodwin, 717
F.3d 511, 518 (7th Cir. 2013). “We have repeatedly held that ‘a
sentencing based on an incorrect Guidelines range constitutes
plain error and warrants a remand for resentencing, unless we
have reason to believe that the error in no way affected the
district court’s selection of a particular sentence.’” Jenkins, 772
F.3d at 1097 (quoting United States v. Love, 706 F.3d 832, 841
(7th Cir. 2013)). Ordinarily, we presume that “the improperly
calculated Guidelines range influenced the judge’s choice of
sentence,” and therefore affected the defendant’s substantial
rights. United States v. McGuire, 835 F.3d 756, 760 (7th Cir.
2016) (quoting United States v. Adams, 746 F.3d 734, 743 (7th
Cir. 2014)). However, this “presumption can be overcome”
when the sentencing judge makes clear that it did not rely on
the Guidelines in fashioning its sentence. See id.; see also Mo-
lina-Martinez v. United States, 136 S. Ct. 1338, 1346–47 (2016)
(“The record in a case may show, for example, that the district
court thought the sentence it chose was appropriate irrespec-
tive of the Guidelines range. Judges may find that some cases
merit a detailed explanation of the reasons the selected sen-
tence is appropriate. And that explanation could make it clear
that the judge based the sentence he or she selected on factors
independent of the Guidelines.”); United States v. Garrett, 528
F.3d 525, 527 (7th Cir. 2008) (“A sentence based on an incorrect
Guideline range constitutes an error affecting substantial
rights and can thus constitute plain error, which requires us
to remand unless we have reason to believe that the error did not
affect the district court's selection of a particular sentence.”) (em-
phasis added) (citing United States v. Wallace, 32 F.3d 1171,
1174 (7th Cir. 1994)).
46 No. 19-2357
Regardless of the district court’s error in applying the
§ 4B1.1 enhancement to Hammond, we are convinced that the
Guidelines range did not affect the district court’s sentence. In
imposing Hammond’s sentence, the district court observed
that Hammond had effectively served a ten-year sentence on
his most recent Indiana conviction for armed robbery. The
district court reasoned that “[g]iven Mr. Hammond’s past
armed robberies, no robbery sentence of less than 10 years in
this case for any of the robberies would be reasonable.” After
committing his first robbery, “he kept going,” so the court
thought that “allowing incremental increases for each of the
later robberies, when that’s taken into account, a 10-year sen-
tence on Count 1 [for the October 6 robbery] is enough but not
greater than necessary to satisfy the purposes of the sentenc-
ing statute.” The court therefore continued to assign incre-
mentally increasing sentences for the October 7, 9, 25, and 27
robberies, culminating in an 18-year sentence for the final rob-
bery.
Beyond the Hobbs Act counts, Hammond’s conviction of
two counts of brandishing a firearm during a crime of vio-
lence each carried a mandatory minimum sentence of seven
years in prison. And Hammond’s felon-in-possession convic-
tion carried a mandatory minimum sentence of fifteen years
in prison. The court declined defense counsel’s request to run
those sentences concurrently to his sentence for the robbery
charges, and instead imposed the 29-year sentence for the
weapons charges to run consecutively to the 18 years it im-
posed for the robbery charges.
In explaining this sentence, the district court unequivo-
cally stated that it would have imposed the same sentence re-
gardless of the recommended Guidelines range:
No. 19-2357 47
I did arrive at this sentence solely by considering the
seriousness and impact of the crimes of conviction and
Mr. Hammond’s prior crimes. I calculated the Guide-
line recommendation, as I’m required to do, but ulti-
mately did not use it in determining this sentence. So,
I can say, as the Government requested, that I would
impose the same sentence even if the Guideline calcu-
lation produced a different recommendation[.]
Beyond simply stating that the court would have imposed
the same sentence regardless of the Guidelines, the district
court’s explanation of how it fashioned its sentence illustrates
that the court did not, in fact, rely on the Guidelines. Indeed,
the district court could not have been any clearer that its cal-
culation of the appropriate sentence did not depend on the
Guidelines range but was instead based on the seriousness of
his current and past crimes, Hammond’s danger to the com-
munity, and the lack of deterrence that prior, shorter sen-
tences had had on Hammond. Thus, the sentencing court did
not just pay lip service to the notion that it would impose the
same sentence regardless of the Guidelines, it calculated its
sentence without the aid of the Guidelines. We therefore have
“reason to believe that the error in no way affected the district
court’s selection of a particular sentence” and affirm Ham-
mond’s sentence. Jenkins, 772 F.3d at 1097.
III. Conclusion
In light of the foregoing, Hammond’s conviction and sen-
tence are
AFFIRMED.