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United States v. Kruger

United States Court of Appeals, Seventh Circuit

October 5, 2016

United States of America, Plaintiff-Appellee,
v.
James M. Kruger, Defendant-Appellant.

          Argued September 16, 2016

         Appeal from the United States District Court for the Western District of Wisconsin. No. 3:13-cr-00113-wmc-1 - William M. Conley, Chief Judge.

          Before POSNER, RIPPLE, and ROVNER, Circuit Judges.

          ROVNER, CIRCUIT JUDGE.

         Defendant-appellant James M. Kruger was arrested in 2013 after a day-long crime spree in southwestern Wisconsin during which he robbed his uncle, kidnapped a 69 year-old farmer, stole multiple vehicles, and drove over rural roads at speeds exceeding 100 miles per hour in an ultimately unsuccessful effort to elude capture by the authorities. He pleaded guilty to being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1), and the district court ordered him to serve a prison term of 180 months. Kruger appeals the sentence, contending that the district court committed plain error in applying the Sentencing Guidelines when it found that he "otherwise used" a firearm to commit a kidnapping, see U.S.S.G. §§ 1B1.1, comment. (n.1(I)) & 2A4.1(b)(3), comment, (n.2), and assigned several points to his criminal history. We find no plain error in the enhancement for use of a firearm, and because any potential error in the calculation of his criminal history did not affect his advisory Guidelines sentencing range, we do not reach that issue.

         I.

         Kruger has led a troubled life. He was born into a broken, dysfunctional family and placed in foster care at the age of 12. He began drinking at age 8 and smoking marijuana and crack cocaine at age 15. Psychiatric problems emerged during his adolescence. He was homeless from the ages of 18 to 25. He has a lengthy criminal history dating back to age 17 that includes multiple prior felony convictions. As a result of those convictions, during the time period relevant to this case, Kruger could not legally possess a firearm or ammunition in interstate commerce. § 922(g)(1).

         On June 6, 2013, Kruger arranged to purchase a .22 caliber rifle and a 1, 600-round canister of .22 caliber ammunition at a Gander Mountain store in Deforest, Wisconsin. Bonnie Forseth purchased these items at Kruger's behest; he told her that he was going to give the rifle to his father as a gift. Following the purchase, she placed the rifle in his truck and did not see it again. Kruger's father would later tell investigators that Kruger did, in fact, give the gun to him. But at one or more points during the period of August 14 to August 28, 2013, both the rifle and the ammunition were in Kruger's possession.

         On August 28, individuals who shared a residence with Kruger in Madison, Wisconsin spoke to a police detective and advised him that Kruger was selling cocaine from the residence and had threatened one of them with a rifle on the prior evening. Kruger reportedly was using both cocaine and methamphetamine to deal with his mental difficulties, and his behavior had become increasingly violent. His roommates indicated that they had first seen the rifle about two weeks earlier. They showed the detective an empty box for the rifle, which contained the June purchase receipt from Gander Mountain. They also advised the detective that the rifle itself was located behind the seat in Kruger's truck (one of them had placed it there at Kruger's instruction). The truck was located and impounded later that same day. Two days later, the truck was searched pursuant to a warrant. Inside was documentation confirming that Kruger was the registered owner of the truck. Also found was the rifle along with the 1, 600 rounds of ammunition and another receipt from Gander Mountain. Kruger was arrested on an unrelated charge on September 3, but he was evidently released on a signature bond by mistake.

         At approximately 6:30 on the morning on September 10, 2013, Kruger arrived at the home of his uncle, Keith "Dale" Kruger ("Dale"). Kruger was agitated and behaving irrationally.[1] He pointed a gun to Dale's head and threatened to kill Dale and other family members. When Dale pushed the gun away, the two struggled and Kruger grabbed his uncle's neck and began to choke him, repeating the threat to kill him. Telling Dale that he needed money, Kruger demanded that he open a safe in the basement. Eventually, Dale was able to open the safe and Kruger took a small amount of money from within. Kruger also broke into a gun cabinet and took a rifle, semi-automatic handgun, and a shotgun. Dale eventually escaped to a neighbor's house and called the police. Kruger, in the meantime, fled the scene in his car.

         Kruger drove to a farm in rural Cassville, Wisconsin, owned by Walter and Linda Reidl. Linda saw the car arrive on the property and pull into or behind a shed. As she approached the shed, Kruger pointed a handgun at her. She told him to put the gun down. Walter arrived on the scene at that moment from elsewhere on the property driving a truck and cattle trailer and Linda flagged him down. When Walter exited the truck, Kruger pointed the gun at his own head. The Reidls engaged Kruger in conversation about religion, during which Kruger advised them that he was a disciple of God. Yet, Kruger threatened to kill both the Reidls and himself. Walter had been planning to take a cow he had loaded onto the trailer to Bloomington, Wisconsin, for slaughter. Hoping to protect Linda, he suggested that he leave the farm with Kruger in the truck and drop him in Bloomington; Linda would remain behind. Kruger agreed. He changed his clothes and took a cap and a pair of sunglasses from Walter, and Linda retrieved two cans of soda from the house for him. Kruger then ordered Walter into the passenger seat of the Reidls' truck, placed a shotgun in the cab, took a seat behind the wheel, placed the handgun he had previously pointed at Linda in his lap, and departed the farm with the cow in tow. Kruger told Walter that he also had explosives with him.

         Kruger took Walter on a meandering two-hour journey to Dodgeville, Wisconsin, never stopping in Bloomington. Twice during the journey, Kruger put a crushed pill into one of the soda cans, lit the pill, and inhaled the smoke, telling Walter that it calmed him. At one point, Walter asked Kruger to let him go, but Kruger refused. Eventually, when the two reached Dodgeville, Walter persuaded Kruger to let him telephone his wife and tell her he was alright. Kruger gave Walter some money and directed him to see if he could buy some more soda from a taxidermy shop. Walter walked into Rickey's Ridge Taxidermy Studio, locked the front door behind him, told the proprietor that he was being held hostage, and asked him to call the police.

         When Kruger heard sirens approaching, he sped away from the scene in the truck. (The trailer and cow had been ditched earlier.) Multiple squad cars gave chase, but Kruger initially managed to shake their pursuit. By this time, an advisory bulletin had been issued, local schools had been locked down, and area residents had been warned to stay in their homes; sheriff's deputies from four different counties and a state patrol aircraft were involved in the effort to capture Kruger. Kruger stopped at two other residences where he, among other things, confronted another resident with a gun, trimmed off his goatee, and stole another vehicle. He was ultimately captured following another high-speed pursuit when police placed "spike strips" in his path and the tires of the stolen car were punctured, causing it to overturn. He was arrested and charged with multiple state offenses, but his use of firearms promptly brought him to the attention of the federal authorities as well.

         In a superseding indictment, a federal grand jury charged Kruger with three counts of being a felon-in-possession in violation 922(g)(1). Count One was premised on Kruger's possession of the .22-caliber shotgun and the ammunition that Bonnie Forseth had purchased for him from Gander Mountain at his behest on June 6, 2013. Count Two charged that Kruger had possessed the same shotgun and ammunition between August 14 and August 28, 2013. Count Three arose from the lengthy ...


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