December 13, 2016
from the United States District Court for the Western
District of Wisconsin, Madison Division. No.
3:15-cr-00126-JDP-l - James D. Peterson, Judge.
Posner, Kanne, and Sykes, Circuit Judges.
POSNER, Circuit Judge.
defendant pleaded guilty to being a felon in possession of a
firearm, namely a Glock 22 .40 caliber pistol with a capacity
of more than 15 rounds; such possession is a felony, see 18
U.S.C. § 922(g)(1), punishable by a fine and also by
imprisonment for a maximum of 10 years (there is no minimum
term of imprisonment). 18 U.S.C. § 924(a)(2). The judge
increased the defendant's guidelines range by four
levels, pursuant to U.S.S.G. § 2K2.1(b)(6)(B), for
possessing the firearm in connection with another felony
offense, namely the distribution of an illegal drug. The
result was a guideline range of 57 to 71 months. But the
judge sentenced the defendant to only 36 months, which was
within the guideline range only if the four-level enhancement
and the gun's high-capacity magazine were ignored; the
judge thought the shorter sentence appropriate.
don't think the judge was correct to rule that the
defendant had possessed the gun in connection with two other
alleged felony offenses, both being drug transactions. The
first transaction involved a person who, being short of cash
to pay for the synthetic marijuana that he'd just bought
from the defendant, pawned his Glock (the Glock we mentioned
earlier) to the defendant pending payment for the marijuana.
It's not known when Gates expected to be paid. What we do
know is that a few days after the transaction he sold the
gun, to someone who happened to be a confidential informant,
for $300, allegedly with his marijuana customer's consent
to that method of clearing the customer's debt; the $300
adequately compensated Gates for the marijuana that he had
sold the customer.
had sequestered the Glock in his garage during the brief
interim before he sold it; he had not used the gun or even
touched it except for carrying it to, and later (when he had
a customer) from, the garage. The Glock was thus as
"dangerous" in the defendant's "use"
of it as if the pawn had instead been a Patek Philippe watch.
The government argues that the gun had facilitated the sale
of the drug, but we don't know whether, had the defendant
not had the gun, he would have obtained some substitute pawn
from the buyer of the drugs from him, or if not would have
trusted the buyer to pay him eventually-for he hadn't
asked the buyer to give him a gun as collateral. Indeed he
hadn't asked for any collateral; it was the
buyer's idea to offer collateral in lieu of immediate
payment, and also for the collateral to be a gun. There is no
evidence that had it not been for the collateral the
defendant would have cancelled his transaction with the
buyer. It is common for drug buyers to be short of cash and
therefore take some time before they can pay for the drugs
government cites our decision in United States v.
Doody, 600 F.3d 752, 755 (7th Cir. 2010), where we said
that "receiving a gun in exchange for drugs-whether as
payment or collateral-facilitates the drug transaction."
But that was not said (as the government mistakenly asserts)
in regard to the four-level guideline enhancement of U.S.S.G.
§ 2K2.1(b)(6)(B); it was said in relation to 18 U.S.C.
§ 924(c), which establishes mandatory minimum sentences
for using or carrying a gun in relation to a crime of
violence or a drug trafficking crime-and neither
"use" nor "carry" accurately describes
the defendant's relation to the Glock. For there is as we
said no evidence that he demanded collateral, let alone
collateral in the form of a gun, from the purchaser of
synthetic marijuana from him.
also from the case is evidence that the synthetic marijuana
that the defendant sold was at the time of the sale a
"scheduled" (that is, an illegal) drug. And if not,
then the gun had no possible relation to a drug crime. Later,
it's true, the defendant sold the gun, to the
confidential informant, and so pleased was the defendant with
the sale that he gave the confidential informant a gift
(worth $40) of approximate- ly 16 grams of scheduled
synthetic marijuana. The gift, following as it did the sale
of the gun, did not facilitate that sale; and bear in mind
that the defendant was punished only for alleged improper use
of a gun, and not for selling (let alone giving away) illegal
the sentence imposed was within the guideline range for the
offense of being a felon in possession of a gun, the
judge's remarks at sentencing suggest that his real
concern was that the gun had been used in an illegal-drug
transaction. But it hadn't been; the defendant hadn't
used the gun to facilitate either the first transaction,
which so far as appears was legal because the synthetic
marijuana that he sold had not yet been "scheduled"
(i.e., classified illegal), or the second transaction. And
while the defendant did plead guilty to being a felon in
possession of a firearm, his sentence was based not on that
crime but instead on his having "used" a gun in
connection with an illegal drug transaction, namely the first
transaction, the sale to the owner of the gun. But the
defendant had not used the gun; nor is there
evidence that the sale was of an illegal drug, as
distinguished from unscheduled synthetic marijuana. Nor is
there the slightest indication that the gun pawned to him by
the first buyer (the buyer of the unscheduled synthetic
marijuana) facilitated his gift of the scheduled synthetic
marijuana to the second buyer (the buyer of the gun).
government argues that even if the judge made mistakes in
sentencing they were harmless. The judge did say "it
seems to me that if I were to relieve [the defendant] from
the effect of the enhancements, we end up with a sentence
that's just about right." But he also said that
"the sentence ... reflects the seriousness of the
offense. ... It was a dangerous weapon that was possessed and
it was possessed in connection with the dealing of
drugs." As far as the defendant was concerned, the gun
was not "dangerous, " because he held it as
collateral, with no intention of using it as a weapon. We
can't see the legal significance of the gun, taken as
collateral, secreted in the garage, and then sold.
judgment of the district court is therefore vacated and the
case remanded to that court for further ...