Appeals from the United States District Court for the Northern District of Illinois, Western Division. No. 06 CR 50060-Philip G. Reinhard, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge
ARGUED SEPTEMBER 22, 2008
Before EASTERBROOK, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges.
Joseph J. Hill and Larry E. Lumsden both pleaded guilty to a charge that they had unlawfully possessed firearms as convicted felons, in violation of 18 U.S.C. § 922(g)(1). Hill was ordered to serve a prison term of sixty-six months, while his co-defendant Lumsden was sentenced to a term of seventy- one months. They both appeal their sentences. Hill con-tends that the district court improperly denied him an offense-level reduction based on his mitigating role in the offense, see U.S.S.G. § 3B1.2, and that the court, in deciding the length of his sentence, improperly referenced what it thought Lumsden's prison term ought to have been rather than what it actually was. Lumsden argues that the court erroneously increased his offense level for possessing firearms in connection with another offense, see U.S.S.G. § 2K2.1(b)(6), and that the court's use of the Sentencing Guidelines manual in effect at the time of his sentencing was contrary to the ex post facto clause of the Constitution. Because the district court appears to have erroneously believed Hill was ineligible for a mitigating-role reduction due to the fact that he was held accountable only for his own criminal conduct, we vacate his sentence and remand for re-sentencing. We affirm Lumsden's sentence, however.
On September 2, 2006, Lumsden, together with his brother Charles and his brother's girlfriend, Dee Iku, a/k/a Christine Waller ("Waller"), burglarized the residence of Waller's estranged husband in Durand, Illinois. Among other items, they stole various firearms and ammunition. Hill did not participate in the robbery.
Lumsden subsequently sought to sell the stolen firearms. On the afternoon of September 6, he was visiting the home of another brother, David, and spoke with his brother's girlfriend about the guns. She was or became a confidential informant ("CI") for the authorities. Lumsden told the CI that he had three "long guns" and one handgun for sale. Lumsden was candid about the fact that the guns had been stolen. The CI told Lumsden that she would get back to him after asking around to see if anyone was interested in the firearms. The CI proceeded to contact the Rockford Police Department ("RPD") to report what Lumsden had told her about the burglary and Lumsden's desire to sell the firearms.
On the following day, September 7, the CI, acting on instructions from members of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the RPD, arranged to make a purchase of firearms from Lumsden. She told him that her uncle was interested in buying some guns. Lumsden subsequently offered to sell her two double-barreled shotguns, a 12-gauge shotgun, and a crate of ammunition for $600. The CI agreed to Lumsden's terms.
Later that afternoon, the CI drove to Lumsden's mobile home to make the purchase. She wore a body recording device to the meeting and was under surveillance while she met with Lumsden. Surveillance agents saw Lumsden carry something wrapped in a blue blanket and place it in the back of the CI's vehicle; Lumsden also placed a large crate in the vehicle. When the CI later met with the authorities, they discovered that the blue blanket concealed three firearms: two Stoeger Arms double-barreled shotguns and a Remington Arms single-barreled shotgun. The crate contained some 298 rounds of assorted shotgun shells. The firearms purchased by the CI matched the description of three shotguns reported stolen from the residence in Durand, and inside the crate of ammunition was a gun cleaning kit with the name of the burglarized homeowner. The guns and the ammunition all were manufactured outside of Illinois, and they would later form the basis for Count One of the indictment against Lumsden and Hill. The CI told ATF Special Agent Daniel Ivancich that when she arrived at Lumsden's home, Lumsden was not there. Lumsden showed up a few minutes later with Hill. At Lumsden's instruction, the CI retrieved from her vehicle a blanket that she had brought with her to cover the guns. Lumsden led the CI to a back room where the three shotguns and crate of ammunition were laid out on the floor. Hill wrapped the guns in the CI's blanket while the CI paid Lumsden. Lumsden reminded the CI that the guns were "hotter than a piece of bacon in a frying pan." R. 1 Ivancich Aff. ¶ 9.
On September 11, after additional contacts with Lumsden, the CI purchased two additional firearms from him for $500: a Marlin .22 caliber rifle, and a Remington 12 gauge shotgun. As part of the deal, Lumsden also provided the CI with twenty-five rounds of ammunition for each of the guns. Like the guns the CI had procured from Lumsden four days earlier, these two firearms had also been stolen from the Durand residence. They had also been manufactured outside of Illinois. These two firearms and the ammunition would later form the basis for Count Two of the indictment against Hill and Lumsden. When the CI arrived at Lumsden's home to make the purchase, Lumsden took her into a bedroom where the firearms were laying on a futon beneath a blanket. The CI paid Lumsden in cash, and Lumsden wrapped the guns in the blanket. Hill was present while the CI and Lumsden did business, and he carried the wrapped firearms outside to the CI's vehicle, which was parked in the driveway. Hill knew that the firearms had been stolen. Hill did not profit from the sale. His possession of the firearms did not exceed ten minutes.
Hill and Lumsden were arrested several days later. As convicted felons, both were prohibited from possessing firearms in or affecting commerce, and based on their possession of the weapons and ammunition sold to the CI on September 7 and 11, 2006, they were jointly charged in an indictment with two separate violations of the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1). Lumsden alone was charged in a third count with the possession of another weapon found in his home on the date of his arrest (not a gun that was taken in the burglary). Both defendants ultimately pleaded guilty to Count Two of the indictment, which charged their unlawful possession of the shotguns and ammunition sold to the CI on September 11, 2006.
The district court sentenced Lumsden to a prison term of seventy-one months. In calculating the advisory sentencing range for Lumsden under the Sentencing Guidelines, the district court adjusted his offense level upward by four levels pursuant to Guidelines section 2K2.1(b)(6), finding that Lumsden had possessed the five firearms he sold to the CI in connection with another offense- namely, the burglary by which he had obtained the firearms. The court relied on the November 2006 version of the Sentencing Guidelines when imposing that enhancement, rejecting Lumsden's contention that the Constitution's ex post facto clause forbade the court from doing so. R. 65 at 9-10. The 2006 Guidelines also specified a four-level enhancement based on the fact that the gun found in Lumsden's home on the date of his arrest had an obliterated serial number, see U.S.S.G. § 2K2.1(b)(4)(A), whereas earlier versions had called for only a two-level enhancement. The final offense level called for a sentence in the range of fifty-seven to seventy-one months. The court considered imposing a sentence above that range in view of Lumsden's relatively extensive and serious criminal history (he had three felony convictions and several misdemeanor convictions). How-ever, the court ultimately rejected that possibility given the increases in Lumsden's offense level triggered by the 2006 Guidelines. R. 65 at 22-23.
The district court imposed a sixty-six month term on Hill. Hill contended that he was entitled to a reduction in his offense role for having played a minor or minimal role in the offense. See U.S.S.G. § 3B1.2. Hill's theory was that because he was not involved in the theft of the guns, did not profit from the sale of the guns to the CI, and only briefly possessed the guns when he carried them out to the CI's automobile on September 11, his role in the offense was much less culpable than that of Lumsden and the average participant in unlawful weapons possession. But the district court rejected Hill's request for the reduction. The court reasoned in part that Hill was not eligible for the reduction because he had not been charged for the theft and sale of the guns, in which he played a lesser role than Lumsden, but rather solely with his own possession of the guns. R. 70 at 12-13. "This is a narrowly tailored offense, and I'm satisfied that . . . he is not eligible for it under all these facts." R. 70 at 13. Alternatively, the court held that even if Hill was eligible for the reduction it was not appropriate in his case, as "he would not be substantially less culpable than the average participant in his possession." R. 70 at 13. The resulting offense level produced an advisory sentencing range of fifty-seven to seventy-one months-the same as Lumsden's. (Hill too had prior convictions for three felonies and "countless misdemeanor offenses." R. 70 at 26.) The court rejected Hill's request for a sentence below that range based essentially on the same facts underlying his (rejected) request for a mitigating-role reduction. "I sense that in your situation it was Lumsden's scheme, and you were there. You're his buddy and you possessed the weapon just to help him out." R. 70 at 27. But given the circumstances of the offense, Hill's criminal history, and the other relevant sentencing factors, see 18 U.S.C. § 3553(a), the court concluded that a below-Guidelines sentence was not appropriate. In deciding where within the range to sentence Hill, the court referenced the sentence it had imposed on Lumsden:
[Y]our co-defendant received 71 months. I almost was going to depart upward and sentence him to 96 months, but I did not, and that was on the basis that he got extra points for the possession of the other ...