In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2700
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HARLES S UGGS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cr-00138—David F. Hamilton, Judge.
A RGUED A PRIL 27, 2010—D ECIDED O CTOBER 1, 2010
Before R OVNER, W ILLIAMS, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Police officers arrested Charles
Suggs after a traffic stop during which he pulled a hand-
gun from beneath the driver’s seat of his truck. Suggs
later pleaded guilty to being a felon in possession of a
firearm, see 18 U.S.C. § 922(g)(1), and was sentenced to
108 months’ imprisonment. On appeal Suggs challenges
the district court’s application at sentencing of a 4-level
increase under U.S.S.G. § 2K2.1(b)(6) for using or pos-
2 No. 09-2700
sessing the firearm in connection with another felony
offense. We affirm.
I. Background
On April 29, 2007, Officer Javie Settlemoir of the
Danville Police Department was dispatched to inves-
tigate a report of a possible drunk driver driving a red
pickup truck. Officer Settlemoir and another officer
located the truck and saw its driver commit several
traffic offenses. Settlemoir initiated a traffic stop, but the
driver did not immediately stop. Eventually, the driver
pulled into a parking lot.
As officers approached the truck, the driver, Suggs,
stepped out and began to gather documents, first from
his wallet and then from the vehicle’s glove compart-
ment. He informed the officers that he did not have
his license with him. The officers asked Suggs to step to
the rear of the vehicle. He did not comply; instead, he
leaned into the truck, this time reaching under the
front seat. Officer Settlemoir tried several times to grab
Suggs’s arm and pull it from the cab of the truck, re-
peating his directive that Suggs move to the rear of the
vehicle. Each time, Suggs wrested his arm free and
reached again under the front seat of the truck. On the
fourth try, Settlemoir was able to grab Suggs’s right
forearm and jerk it, and the force of Settlemoir’s tug
knocked a handgun out of Suggs’s right hand. Settlemoir
and another officer then secured and handcuffed Suggs.
When the officers asked what he had intended to do
No. 09-2700 3
with the weapon, Suggs replied, “I was going to give it
to you.” Officers then arrested Suggs.
Suggs was later charged with being a felon in posses-
sion of a firearm and pleaded guilty pursuant to a plea
agreement. In Suggs’s presentence report, the probation
officer applied a base offense level of 20, see U.S.S.G.
§ 2K2.1(a)(4)(A); added two levels because the firearm
was stolen, see id. § 2K2.1(b)(4)(A); added four levels
because Suggs possessed the firearm in the commission
of another felony offense, resisting law enforcement
with a deadly weapon under section 35-44-3-3(b)(1)(B) of
the Indiana Code, see U.S.S.G. § 2K2.1(b)(6); and sub-
tracted three levels for acceptance of responsibility, see id.
§ 3E1.1, resulting in a total offense level of 23. With
Suggs’s criminal history category of IV, this yielded a
guidelines range of 70 to 87 months’ imprisonment.
At sentencing Suggs disputed the 4-level increase
under § 2K2.1(b)(6). This guideline applies if a defendant
“used or possessed any firearm or ammunition in con-
nection with another felony offense.” See id. § 2K2.1(b)(6).
Suggs conceded that he “possessed” a firearm while
resisting the officers. But he disputed that his possession
related to another felony offense; he asserted instead
that his actions fell under section 35-44-3-3(a)(1), the
Indiana statute that makes it a Class A misdemeanor
to “forcibly resist[], obstruct[], or interfere[] with a law
enforcement officer or a person assisting the officer
while the officer is lawfully engaged in the execution
of the officer’s duties.” He argued that he neither
“drew” nor “used” the handgun as required to elevate
4 No. 09-2700
this offense to a Class D felony under Indiana law. See
IND. C ODE § 35-44-3-3(b)(1)(B). Had the district court
agreed, the resulting total offense level of 19 would have
corresponded to a guidelines range of 46 to 57 months’
imprisonment.
After hearing argument, the district court disagreed,
finding that Suggs had drawn the weapon within the
meaning of section 35-44-3-3(b)(1)(B) and adopting the
guidelines calculations recommended by the presen-
tence report. The court then imposed a 108-month,
above-guidelines prison sentence, citing among other
things Suggs’s quick return to crime after completing his
20-year prison term for murder and the court’s belief
that his long criminal history was underrepresented
by the applicable guidelines range. When pronouncing
the sentence, the judge noted that he would have
imposed the same sentence even if it had not applied
§ 2K2.1(b)(6).
II. Discussion
On appeal Suggs reiterates his argument that the
district court should not have applied a 4-level increase
under § 2K2.1(b)(6). This argument actually comprises
two related arguments. The first involves the applica-
bility of § 2K2.1(b)(6) to his conduct; Suggs argues
that § 2K2.1(b)(6) should not apply because he never
“used” the firearm within the meaning of the guideline.
The second, related argument involves the proper charac-
terization of his conduct under section 35-44-3-3,
the Indiana resisting-law-enforcement statute; Suggs
No. 09-2700 5
asserts that his conduct did not satisfy the statutory
requirements necessary to make his violation of sec-
tion 35-44-3-3 a felony rather than a misdemeanor
under Indiana law.
Regarding the first argument, Suggs argues that he
did not “use” the handgun during the traffic stop
within the meaning of § 2K2.1(b)(6) because applicable
precedent has defined “use” to mean active employment
or implementation. See United States v. Lang, 537 F.3d 718,
720-21 (7th Cir. 2008) (defining “use” under § 2K2.1 as
employment for some purpose); see also Bailey v. United
States, 516 U.S. 137, 143 (1995) (holding that use of a
firearm “signifies active employment” and “more than
mere possession”). At most, Suggs contends, he merely
pulled the handgun from beneath the seat.
But Suggs’s argument omits a key consideration: He
need not have “used” the firearm for § 2K2.1(b)(6) to
apply. The guideline requires the court to apply a
4-level increase “[i]f the defendant used or possessed
any firearm or ammunition in connection with another
felony offense.” U.S.S.G. § 2K2.1(b)(6). Though the
facts suggest that Suggs never had the opportunity to
actively employ the handgun, he does not deny that
he “possessed” the firearm when he grasped it while
resisting the officers. This is all that is needed to trigger
application of § 2K2.1(b)(6). And possession alone is
sufficient to bring a felony in which the firearm was
involved within the meaning of § 2K2.1(b)(6) as long as
the handgun had some purpose or effect in, or facilitated,
the related felony. See United States v. LePage, 477 F.3d 485,
6 No. 09-2700
489 (7th Cir. 2007); United States v. Haynes, 179 F.3d 1045,
1047 (7th Cir. 1999); United States v. Wyatt, 102 F.3d 241,
247 (7th Cir. 1996).
The matter turns, then, on the second question: whether
the district court clearly erred in finding that Suggs’s
possession of the firearm while resisting officers under
section 35-44-3-3 amounted to a felony under Indiana
law. See United States v. Meece, 580 F.3d 616, 620-21 (7th
Cir. 2009) (stating that a district court’s application of
§ 2K2.1(b)(6) is “a mixed question of fact and law” sub-
ject to clear-error review) (quotation marks omitted);
United States v. Canady, 578 F.3d 665, 673 (7th Cir. 2009)
(applying clear-error review to a district court’s applica-
tion of guidelines based on factual findings). Again,
Suggs urges that his conduct during the traffic stop
constituted merely misdemeanor resisting under section
35-44-3-3(a)(1). Section 35-44-3-3(b)(1)(B), by contrast,
renders such conduct a Class D felony if while it is com-
mitted “the person draws or uses a deadly weapon,
inflicts bodily injury on or otherwise causes bodily
injury to another person, or operates a vehicle in a
manner that creates a substantial risk of bodily injury
to another person.” At sentencing the district court con-
cluded that Suggs “drew” the handgun within the
meaning of section 35-44-3-3(b)(1)(B) by pulling it from
beneath the seat of his truck.
In disputing this conclusion, Suggs relies primarily on
Dunkle v. State, 173 N.E.2d 657 (Ind. 1961), which consid-
ered the meaning of “draw” under Indiana law. In Dunkle
the Indiana Supreme Court interpreted several now-
No. 09-2700 7
superceded statutory provisions to distinguish “drawing”
a dangerous weapon from “pointing” or “aiming” such
a weapon. Id. at 659. The court concluded, in part, that
“drawing” a weapon is “the act by which the particular
weapon is taken out of or removed for use, from the en-
closure which contained it.” Id. Few recent cases have
cited Dunkle or interpreted the meaning of “draw,” but
some Indiana courts have interpreted Dunkle to hold
that “drawing” requires removal of a weapon for use
from an enclosure on one’s person specifically designed
to contain the weapon itself, such as a sheath or holster.
See Willumsen v. State, No. 84A05-0809-CR-530, 2009
WL 440427, at *2 (Ind. Ct. App. Feb. 20, 2009) (non-
precedential disposition); Wise v. State, 401 N.E.2d 65, 70
(Ind. Ct. App. 1980). Suggs insists that he could not
have “drawn” the handgun from beneath the seat
because it was not contained in an enclosure such as
a holster or sheath.
Close inspection, however, reveals that Dunkle was
concerned primarily with distinguishing “drawing” from
other modes of employment of a deadly weapon. See
Dunkle, 173 N.E.2d at 659; see also Palmer v. Decker, 255
N.E.2d 797, 799 (Ind. 1970); Burk v. State, 716 N.E.2d 39,
43 (Ind. Ct. App. 1999). Though the Dunkle court noted
that the weapons listed in the then-operative statutory
scheme (which included “pistol[s], dirk[s], kni[ves],
slung-shot[s], or other deadly or dangerous weapon[s]”)
were commonly carried in a “small enclosure upon
a person,” it did not state that they were always
carried this way or that the enclosure must be on the
person. 173 N.E.2d at 659 (quotation marks omitted).
8 No. 09-2700
The definition instead suggests that the salient char-
acter of “drawing” a weapon is the common-sense under-
standing of bringing it forth and preparing it for use. See
id. at 659 n.2 (defining “draw” as “[t]o cause to come out;
to extract; to educe; to bring forth; as . . . from some
receptacle”) (quotation marks omitted).
More importantly, however, Suggs’s reliance on Dunkle
is undermined by Indiana’s modern statutory scheme.
Dunkle involves the interpretation of “draw” under a
long-defunct statutory scheme; Indiana’s current stat-
utory scheme defines “deadly weapon” quite broadly,
see IND. C ODE § 35-41-1-8, to include any material that “is
used, or could ordinarily be used, or is intended to be
used” to cause serious bodily injury. This includes, but
is not limited to, firearms, tasers, stun guns, chemicals,
biological diseases or viruses, animals, or other equip-
ment. Id. This broad definition suggests that Suggs’s
proposed limitation on the understanding of “drawing”
a deadly weapon is untenable, even assuming he is
correct about its meaning under the Dunkle-era statutory
scheme.
Indiana’s Pattern Jury Instructions lend further sup-
port to this broader reading and suggest that
juries are entrusted to use the ordinary, common-
sense understanding of “draw” when deciding
whether a defendant’s conduct constitutes “drawing” a
weapon under the statute. 1 For example, the pattern jury
1
Though Indiana courts have not formally endorsed the
Indiana Pattern Jury Instructions, they give them significant
(continued...)
No. 09-2700 9
instruction for section 35-44-3-3 closely tracks the
statute’s text but provides no special guidance to juries
regarding the nature of “drawing” under the statute. See
1 C RIMINAL I NSTRUCTIONS C OMM . OF THE INDIANA
JUDGE’S A SS’N, INDIANA P ATTERN JURY INSTRUCTIONS—
C RIMINAL N O . 5.23 (3d ed. 2003). And we have found
no additional pattern instruction limiting jurors’ under-
standing of “draw” under Indiana law. Common
Indiana practice, then, leaves juror-factfinders—
much like the sentencing court below—free to apply
a common-sense understanding when determining
whether a defendant’s actions constitute “drawing” a
weapon. See Roche v. State, 690 N.E.2d 1115, 1128 (Ind. 1997)
(stating that “where terms are in general use and can be
understood by a person of ordinary intelligence, they
need not be defined” for jurors) (quotation marks omit-
ted); McFarland v. State, 390 N.E.2d 989, 994 (Ind. 1979)
(same).
Suggs responds that even if pulling the handgun
from beneath the seat can constitute drawing, he did not
successfully draw the gun because the officer’s tug on his
arm knocked it from his hand to the floor of the vehicle.
But Suggs’s recollection of events does not square with
the account the district court credited at sentencing, and
we will not disturb the district court’s determination
unless its view of events lacked support in the evidence.
1
(...continued)
preferential status. See Schultz v. Ford Motor Co., 857 N.E.2d
977, 980 n.2 (Ind. 2006).
10 No. 09-2700
See United States v. Boyd, 475 F.3d 875, 876 (7th Cir. 2007);
United States v. Markovitch, 442 F.3d 1029, 1031-32 (7th
Cir. 2006); Wyatt, 102 F.3d at 248. No witnesses testified
at Suggs’s sentencing hearing, and the court credited
Officer Settlemoir’s probable-cause affidavit, which sug-
gests that Suggs had pulled the handgun from beneath
the seat before it was knocked from his hand:
[Suggs] once again pulled away and started back
under the seat. At that point I leaned way over his
body and got his right forearm and jerked it towards
me. As I jerked his arm I clearly saw a handgun in
his right hand. The force of me jerking his arm
knocked the handgun from his grip and the hand-
gun fell to the floorboard of the truck.
The presentence report recounted that Settlemoir saw
the handgun in Suggs’s hand as he struggled to keep
Suggs from reaching into the cabin of the truck: “At that
point, the two officers forcibly removed Suggs from the
truck, and in the process, observed a handgun in Suggs’
right hand. During the altercation, the gun was knocked
out of Suggs’ hand, and he was placed in handcuffs
without further incident.”
Both passages make clear that Suggs sought to draw
the weapon without first informing the officers of its
presence. The district court could reasonably conclude
that Suggs grasped the handgun while resisting officers
and ignored their orders to step to the rear of the vehicle.
And it was likewise reasonable for the court to infer
that Suggs’s grasp for the handgun without alerting the
officers to its presence implied an intent to bring it forth
No. 09-2700 11
and use it in some manner. United States v. Robinson, 537
F.3d 798, 803-04 (7th Cir. 2008). The district court’s con-
clusion that only a split-second separated the retrieval of
the handgun from its actual use suggests that Suggs’s act
of grasping and removing it from beneath the seat was
sufficient to count as “drawing” under the statute. See
Slater v. State, 440 N.E.2d 677 (Ind. 1982) (finding that
mere reference to an undisplayed weapon can constitute
“use”).
In any event, the district court also made clear that it
“would impose the same sentence regardless of the
precise technical answer to [the § 2K2.1(b)(6)] question
under the guidelines.” An error in a guideline applica-
tion may be harmless where the government establishes
that the error did not affect a defendant’s substantial
rights or liberty. See United States v. Zahursky, 580 F.3d
515, 527 (7th Cir. 2009); United States v. Abbas, 560 F.3d
660, 667 (7th Cir. 2009). The government can meet this
burden by showing that the error “did not affect the
district court’s selection of the sentence imposed.” See
United States v. Eubanks, 593 F.3d 645, 655 (7th Cir. 2010)
(quotation marks omitted); United States v. Anderson,
517 F.3d 953, 965 (7th Cir. 2008) (quotation marks omit-
ted). The district court acknowledged the application of
§ 2K2.1(b)(6) to be a close call but considered Suggs’s
long history of violent criminal behavior to be more
important to the ultimate sentencing decision. The
court noted that many of Suggs’s prior run-ins with the
law were not reflected in his criminal history, including
several convictions that preceded his 1986 murder con-
viction. In addition, the court noted that Suggs was
12 No. 09-2700
found in possession of a recently stolen credit card
bearing over $400 in unauthorized charges.
And, notwithstanding application of § 2K2.1(b)(6), the
district court amply explained its reasons for imposing
an above-guidelines sentence in light of the factors set
forth in 18 U.S.C. § 3553(a). See United States v. Mays, 593
F.3d 603, 609 (7th Cir. 2010); United States v. Wise, 556
F.3d 629, 632-33 (7th Cir. 2009); United States v. Tockes, 530
F.3d 628, 632 (7th Cir. 2008). The judge highlighted the
dangerous and volatile nature of Suggs’s offense, citing
in addition the aggravating facts that the handgun was
stolen and contained hollow-point bullets. The court also
noted that at the very least, Suggs sought to pull the
handgun from the truck without notifying the officers of
its presence and while resisting arrest, justifying an
above-guidelines sentence.
A FFIRMED.
10-1-10