Argued May 28, 2014.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-CR-244 -- Rudolph T. Randa, Judge.
For United States of America, Plaintiff - Appellee: William J. Lipscomb, Attorney, Office of The United States Attorney, Milwaukee, WI.
For Victor G. Banks, Defendant - Appellant: Joshua D. Uller, Attorney, Milwaukee, WI.
Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.
Hamilton, Circuit Judge.
Victor Banks played a small role in the sale of two guns to undercover federal agents and pled guilty to possessing a
firearm as a convicted felon. He appeals his sentence of three years in prison and three years of supervised release. Banks argues that the district court failed to calculate the applicable Sentencing Guidelines range, did not address his main mitigation argument, and imposed a substantively unreasonable sentence. We find no error and thus affirm.
In July 2012, Banks took part in the sale of two guns to a federal agent who was posing as an employee of a store in Milwaukee that was in fact an undercover operation run by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. On the way into the store, Banks's associate James Warren asked him to hold a revolver. Banks put it in his waistband. Once inside, Warren negotiated the sale of the guns for $1,000. He took back the revolver from Banks and handed it to the buyer.
Banks and Warren then offered to sell the agent some crack cocaine. The agent said he had money only for the guns but that he would gladly purchase the crack the next day. Banks and Warren duly returned a day later and sold the agent one ounce of what turned out to be fake crack cocaine. (Banks was not charged for this sale, but it played a role in his sentencing, as explained below.) Based on his brief custody of the revolver in his waistband before the sale, Banks was charged with possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). He pled guilty and now appeals his sentence. We discuss Banks's three arguments in turn.
1. Banks first claims that the district court committed a reversible error by failing to calculate his Sentencing Guidelines range. He bases this argument on two facts. One is that his initial presentence report said that his guideline range was 41 to 51 months when in fact it was 30 to 37 months. The report correctly calculated that Banks had an offense level of 17 and a criminal history category of III. (Unlawfully possessing a firearm after an earlier felony drug conviction gave Banks a base offense level of 20, U.S.S.G. § 2K2.1(a)(4)(A), which was reduced three levels for acceptance of responsibility under § 3E1.1(b).) But for unknown reasons the initial report misstated the resulting guideline range. The second fact on which Banks relies is that the district judge never explicitly stated the correct range at sentencing.
The Supreme Court has made clear that a district court must begin sentencing by calculating the applicable guideline range. See Peugh v. United States, 133 S.Ct. 2072, 2080, 186 L.Ed.2d 84 (2013), citing Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Garcia, 754 F.3d 460, 483 (7th ...