In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1556
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
C HRISTOPHER JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 45—George W. Lindberg, Judge.
A RGUED S EPTEMBER 7, 2010—D ECIDED M ARCH 15, 2011
Before F LAUM, R OVNER, and SYKES, Circuit Judges.
R OVNER, Circuit Judge. Christopher Jones pleaded
guilty to multiple narcotics and weapons offenses, and the
district court ordered him to serve a total prison term of
181 months. On appeal, Jones contends that he was de-
prived of the effective assistance of counsel when
the attorney who represented him at sentencing failed
to object to a two-level enhancement to his offense level
based on his possession of a .22-caliber rifle with an
2 No. 09-1556
obliterated serial number. See U.S.S.G. § 2K2.1(b)(4)
(Nov. 2005).1 Jones was not charged with the possession
of that rifle, as the government had no proof that the
rifle had ever moved in interstate or foreign commerce.
Jones reasons that absent evidence bringing his posses-
sion of the rifle within the authority of the federal gov-
ernment to prosecute, the district court could not con-
sider the rifle in calculating his sentencing offense level
for the crimes with which he was charged. However,
because Jones’s possession of the rifle was prohibited by
Illinois law and constituted relevant conduct under the
Sentencing Guidelines, it was entirely appropriate for
the court to apply the enhancement. His attorney there-
fore did not deprive Jones of effective representation by
posing no objection to the enhancement.
I.
Jones was approached and ultimately arrested by
police in October 2004 after he was observed engaging
in what looked like hand-to-hand narcotics sales
near an alleyway entrance in Chicago’s North Lawndale
neighborhood. A search of his person uncovered nine-
tenths of a gram of crack and a Desert Eagle semi-auto-
matic pistol. A subsequent search of his residence in
a nearby two-flat, conducted with the consent of the
building’s owner (Jones’s great-grandfather) and his
1
As Jones was sentenced in March 2006, all citations unless
otherwise noted are to the November 2005 version of the
Sentencing Guidelines in effect at the time of his sentencing.
No. 09-1556 3
grandmother, with whom he lived in the second-floor
apartment, unearthed another 11.4 grams of crack cocaine
and nine firearms, among other contraband, in his bed-
room. The serial numbers on two of those firearms, a
Feg .380 semi-automatic pistol and a .22-caliber rifle,
had been defaced.
A superseding indictment returned in July 2005
alleged that Jones had committed six offenses. Counts
One through Three related to the crack cocaine and the
Desert Eagle pistol that Jones had possessed at the alley-
way and charged him respectively with possessing crack
cocaine with the intent to distribute in violation of 21
U.S.C. § 841(a)(1), using and carrying the Desert Eagle
pistol in furtherance of a drug trafficking offense in
violation of 18 U.S.C. § 924(c)(1)(A), and being a felon
in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1).2 Counts Four through Six were based on
the additional cocaine and firearms found in Jones’s
residence, and respectively charged him with being
a felon in possession of eight of the nine firearms found
in his bedroom in violation of section 922(g)(1),
possessing a firearm (the Feg pistol) with an obliterated
serial number in violation of 18 U.S.C. § 922(k), and
possessing more than five grams of crack cocaine in
violation of 21 U.S.C. § 844. The .22-caliber rife was not
cited in support of either the felon-in-possession charge
in Count Four or the obliterated serial number charge
2
Jones had prior felony convictions for the distribution of
a controlled substance and for the unlawful use of a firearm.
4 No. 09-1556
in Count Five, as the government could not prove that
the rifle had ever traveled in interstate or foreign com-
merce. See § 922(g)(1) (prohibiting person who has been
convicted of felony from, inter alia, possessing any fire-
arm “in or affecting commerce”); § 922(k) (prohibiting
receipt or possession of firearm with obliterated serial
number that “has, at any time, been shipped or trans-
ported in interstate or foreign commerce”).
After Jones entered a blind plea of guilty to all six
charges, the probation officer conducted an investiga-
tion and prepared a presentence report (“PSR” or “re-
port”). In ascertaining the advisory sentencing range
specified by the Sentencing Guidelines, the probation
officer determined that the highest adjusted offense
level applicable to any of the charges was the one
which applied to the firearms offenses in Counts Three,
Four, and Five—Level 32—and she therefore applied
that offense level to all of the charges except the
section 924(c) charge set forth in Count Two, which
mandated a consecutive prison term of 60 months. See
§ 924(c)(1)(A)(i); U.S.S.G. §§ 3D1.1(b)(1) & 3D1.2, com-
ment. (n.1). The offense level of 32 included a two-
point enhancement for possessing a weapon with an
obliterated serial number, which the guideline gov-
erning firearms-possession offenses identifies as a
specific offense characteristic. § 2K2.1(b)(4). The proba-
tion officer based that enhancement on the .22-caliber
rifle found in Jones’s bedroom. In this respect, the proba-
tion officer’s methodology diverged from the gov-
ernment’s own proposed sentencing calculations,
which included the same enhancement but based on
No. 09-1556 5
the Feg semi-automatic pistol (also found in Jones’s
bedroom) rather than the .22-caliber rifle. In the proba-
tion officer’s view, because Jones had been charged in
Count Five with possession of the Feg with its defaced
serial number, it would be double-counting to apply the
defaced serial number enhancement to the group of
firearms offenses that included Count Five.3
Both parties submitted written objections to the PSR.
The government’s objections quarreled with the proba-
tion officer’s methodology in calculating the adjusted
offense level of 32 applicable to all charges but for
that set forth in Count Two. But the government
agreed that 32 was the right offense level. Jones’s coun-
sel objected to the two-level enhancement for obstruc-
tion of justice that the probation officer had applied
based on testimony that Jones had given in support of
an unsuccessful motion to quash his arrest and to
suppress the evidence obtained pursuant to the arrest. See
U.S.S.G. § 3C1.1. Jones’s counsel voiced no objection to
the proposed enhancement pursuant to section 2K2.1(b)(4)
for possession of the .22-caliber rifle with the obliterated
serial number.
3
The government on appeal has renewed its contention that
the enhancement properly could have been based on Jones’s
possession of the Feg semi-automatic pistol. In light of our
conclusion below that it was proper for the district court
to impose the enhancement based on Jones’s possession of
the .22-caliber rifle, we need not address the merits of this
alternative argument in support of the enhancement.
6 No. 09-1556
A sentencing hearing commenced on February 24
and concluded on March 22, 2006. The district court
sustained Jones’s objection to the enhancement for ob-
struction of justice, which brought his offense level to
30; but the court otherwise adopted the probation
officer’s calculations. A final two-level reduction for
acceptance of responsibility pursuant to section 3E1.1(a)
further reduced Jones’s adjusted offense level to 28.
Coupled with a criminal history category of III, that
offense level yielded an advisory sentencing range of 97
to 121 months in prison. The district court imposed
a sentence at the top of that range, reasoning that al-
though the range itself was consistent with the statu-
tory sentencing factors set forth in 18 U.S.C. § 3553(a),
a sentence at the high end of the range was necessary
to account for the gravity of Jones’s offenses, his
“criminal nature,” and his “lack of respect for the law.”
R. 64 at 13. With the addition of the mandatory consecu-
tive sentence of sixty months on Count Two, Jones
was ordered to serve a total prison term of 181 months.
Jones’s counsel did not file a notice of appeal. Within
a year of the entry of judgment, however, and with
the assistance of new counsel, Jones filed a motion for
collateral relief pursuant to 28 U.S.C. § 2255, contending
that he had been denied the effective assistance of
counsel guaranteed by the Sixth Amendment to the
Constitution when the lawyer who represented him
through sentencing failed (among other omissions) to
No. 09-1556 7
file a notice of appeal on his behalf.4 After conducting
an evidentiary hearing, the district court granted Jones’s
motion in part, agreeing that he was deprived of ef-
fective representation when his attorney neglected to file
a notice of appeal despite Jones’s request that he do so.
R. 51 at 13-14; see United States v. Nagib, 56 F.3d 798, 801
(7th Cir. 1995) (counsel’s failure to file notice of appeal on
client’s instruction is per se ineffective, and prejudice
need not be shown). To remedy the Sixth Amendment
violation, the court entered an amended judgment im-
posing the same sentence on Jones, thus opening a new
ten-day window in which Jones could file a direct
appeal from his conviction and sentence. See United
States v. Mosley, 967 F.2d 242, 243 (7th Cir. 1992) (proper
way to remedy counsel’s failure to file notice of appeal
is to reenter judgment so as to create new opportunity
to appeal) (citing, inter alia, Page v. United States, 884
4
In addition, Jones alleged that his counsel was ineffective for
failing to challenge the validity of his great-grandfather’s
and his grandmother’s consent to search his residence (and
in particular, his bedroom), for not objecting to a Magistrate
Judge’s recommendation that his motion to quash his arrest
and suppress the evidence seized pursuant thereto be denied,
and for not negotiating a conditional plea of guilt pursuant
to Federal Rule of Criminal Procedure 11(a)(2) that would
have preserved his right to challenge the validity of his arrest
and the search of his bedroom on appeal. He also made a
boilerplate argument that his attorney’s performance as a
whole deprived him of his right to effective representation.
The district court resolved these claims of ineffectiveness
against Jones, but they are not raised in this appeal.
8 No. 09-1556
F.2d 300, 302 (7th Cir. 1989); see also United States v. West,
240 F.3d 456, 460-61 n.3 (5th Cir. 2001).
With the benefit of the relief granted to him pursuant
to section 2255, Jones has now appealed his sentence.
And here again, he invokes the Sixth Amendment.
At bottom, his contention is that the district court im-
properly calculated his offense level, and the resulting
sentencing range, when it applied the two-level enhance-
ment called for by section 2K2.1(b)(4) for the possession of
a firearm with a defaced serial number. Jones reasons
that because there is no evidence that the .22-caliber
rifle underlying that enhancement ever moved in inter-
state or foreign commerce, the district court could not
rely on the rifle in imposing the enhancement. Of
course, Jones’s sentencing counsel never objected to this
enhancement below 5 despite having advance notice by
way of the PSR that the court might impose it, thereby
5
Not until the section 2255 proceeding was this issue
raised, and even then belatedly. In a footnote to the reply
memorandum that Jones submitted in support of his request
for section 2255 relief, he added the assertion that his
offense level was erroneously enhanced (without objection
from his counsel) based on his possession of the .22-caliber
rifle, given the lack of proof that the rifle had ever been trans-
ported, shipped, or received in interstate or foreign com-
merce. R. 45 at 7 n.2. The district court rejected this conten-
tion summarily in a separate minute order. R. 55. The court
indicated that “the appropriate forum to raise any issues
related to Mr. Jones’ sentence . . . would be via direct appeal
to the Seventh Circuit Court of Appeals once an amended
judgment and commitment form is entered . . . .” R. 55.
No. 09-1556 9
forfeiting, if not waiving, Jones’s right to direct appellate
review of the enhancement.6 Jones’s challenge to the
enhancement is thus encapsulated within a claim that
he was deprived of the effective assistance of counsel:
Because the enhancement for the obliterated serial
6
If Jones’s counsel merely forfeited appellate consideration
of this issue, it would still be subject to review in this court,
albeit for plain error only. E.g., United States v. Favara, 615
F.3d 824, 827 (7th Cir. 2010), pet’n for cert. filed, 79 U.S.L.W. 3310
(U.S. Nov. 9, 2010) (No. 10-631). A waiver, on the other hand,
would preclude appellate review altogether. E.g., United States
v. Salem, 597 F.3d 877, 890 (7th Cir. 2010). Whether the failure
to raise a particular sentencing objection is appropriately
characterized as a forfeiture or waiver of that objection
depends on the circumstances of the individual case, including
whether counsel had sound reasons not to pursue the is-
sue. Compare United States v. Brodie, 507 F.3d 527, 532 (7th
Cir. 2007) (finding waiver where counsel stated his client had
no further objections to presentence report, and where appel-
late court satisfied that counsel had sound reason not to raise
“near-frivolous” issues), with United States v. Jaimes-Jaimes, 406
F.3d 845, 847-49 (7th Cir. 2005) (finding forfeiture where
counsel stated that his client had no objections to presentence
report, but neither appellate court nor government’s counsel
could conceive of sound reason for counsel not to object to
erroneous sixteen-level enhancement). Given the nature of the
claim that Jones has made in this appeal, we need not decide
whether the lack of an objection to the sentence enhance-
ment resulted in a forfeiture or a waiver of the issue. Jones
has not attempted to raise the propriety of the enhancement
as a stand-alone issue and instead has challenged the enhance-
ment solely in the context of his ineffective-assistance claim.
10 No. 09-1556
number could not be imposed on the basis of a firearm
that is beyond the jurisdictional reach of the federal
government, Jones reasons, his counsel was obliged
to challenge it; and having failed to do so, he denied
Jones of the effective representation to which he was
entitled.
II.
We have noted that Jones’s claim for relief is grounded
in his Sixth Amendment right to the effective assistance
of counsel. To succeed on such a claim, he must show
both that his attorney’s performance was objectively
deficient—in other words, that it fell outside the wide
range of competent representation—and that he was
prejudiced by the subpar representation. Strickland v.
Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69
(1984). In order to establish prejudice, he must show
that there is a reasonable probability that but for his
counsel’s mistakes, the result of the proceedings below
would have been different, such that the proceedings
were fundamentally unfair or unreliable. Id. at 687, 691-92,
104 S. Ct. at 2064, 2066-67; see also Williams v. Taylor, 529
U.S. 362, 391-93 & n.17, 120 S. Ct. 1495, 1512-13 & n.17
(2000); Lockhart v. Fretwell, 506 U.S. 364, 369-372, 113 S. Ct.
838, 842-44 (1993). In the sentencing context, an attor-
ney’s unreasonable failure to identify and bring to a
court’s attention an error in the court’s Guidelines cal-
culations that results in a longer sentence may constitute
ineffective assistance entitling the defendant to relief.
See Glover v. United States, 531 U.S. 198, 121 S. Ct. 696
(2001); United States v. Reinhart, 357 F.3d 521 (5th Cir. 2004);
No. 09-1556 11
United States v. Soto, 132 F.3d 56 (D.C. Cir. 1997); United
States v. Headley, 923 F.2d 1079, 1083-85 (3d Cir. 1991). But
see also Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir.
2009) (per curiam) (single error in context of otherwise
vigorous advocacy on behalf of defendant must be suf-
ficiently serious to demonstrate ineffective assistance
of counsel).
Claims of ineffective assistance of trial-level counsel,
because they typically require an assessment of counsel’s
strategic decisions and various other considerations
that are not part of the record in the usual trial court
proceeding, are in most instances not claims that are
amenable to resolution on direct appeal (which this
appeal is, notwithstanding its belated character). See
Massaro v. United States, 538 U.S. 500, 504-05, 123 S. Ct.
1690, 1694 (2003); United States v. Recendiz, 557 F.3d 511,
531-32 (7th Cir. 2009). Only in the rare case, where the
deficiency of an attorney’s performance is beyond
dispute and the prejudice is obvious from the existing
record, might it be possible to grant relief on such a
claim without further evidentiary development of the
record in a collateral proceeding. E.g., Headley, 923 F.2d
at 1083-84. But see also United States v. Harris, 394 F.3d
543, 547 (7th Cir. 2005) (noting that this court has yet
to grant relief on such a claim in a direct appeal); United
States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997) (“This
Court’s reluctance to consider ineffective assistance
claims on direct appeal stems, of course, from the fact
that such claims are very unlikely to find any factual
support in the trial record and an adverse determination
on direct appeal will be res judicata on any subsequent
12 No. 09-1556
collateral attack. As we have so often put it, a defendant
who presents an ineffective-assistance claim for the first
time on direct appeal has little to gain and everything
to lose.”) (internal quotation marks and citations omitted).
Jones’s counsel is right in suggesting that his ineffective-
ness claim is ripe for resolution on the limited record
before us, but that is because it is clear that his claim
lacks merit. As we have noted, the theory underlying
his claim is that it was an obvious error for the district
court to impose the enhancement for the defaced serial
number based on Jones’s possession of the .22-caliber
rifle, given the government’s inability to prove that the
rifle ever moved in interstate commerce. Thus, Jones
reasons, if his lawyer had only spoken up in opposition
to the enhancement rather than remaining silent, the
district court would have recognized that the enhance-
ment was not proper and sustained the objection. See
Strickland, 466 U.S. at 695, 104 S. Ct. at 2068 (“The assess-
ment of prejudice should proceed on the assumption
that the decisionmaker is reasonably, conscientiously,
and impartially applying the standards that govern the
decision.”). But the premise of his claim, that a sen-
tence enhancement for a specific characteristic of the
offense can only be based on conduct that constitutes
a federal crime, turns out to be erroneous.
Had the government charged Jones with possessing
a firearm with a defaced serial number, as it did with
respect to the Feg semi-automatic pistol, proof that the
firearm had some link to interstate or foreign commerce
of course would have been indispensable to establish
No. 09-1556 13
the federal government’s jurisdiction over the offense
under the Commerce Clause. U.S. C ONST. art. 1, § 8, cl. 3;
see United States v. Lopez, 514 U.S. 549, 561, 115 S. Ct. 1624,
1631 (1995) (noting importance of jurisdictional element
of statute “which would ensure, through case-by-case
inquiry, that the firearm possession in question
affects interstate commerce”); § 922(k) (proscribing the
possession of a firearm with obliterated serial number so
long as said firearm “has, at any time, been shipped or
transported in interstate or foreign commerce”);
United States v. Baer, 235 F.3d 561, 563 (10th Cir. 2000)
(finding that jurisdictional element of section 922(k)
satisfies Lopez, and collecting cases); United States v. Bell,
70 F.3d 495 (7th Cir. 1995) (similarly concluding that
jurisdictional element of § 922(g)(1) also satisfies Lopez).
But Jones was not charged with possession of the rifle.
He was charged instead with possessing the other
eight firearms found in his bedroom, as well as the
Desert Eagle pistol found on his person, and the juris-
dictional foundation for those offenses is not chal-
lenged. His uncharged possession of the rifle was taken
into consideration at sentencing as a specific offense
characteristic which increased his offense level (and the
resulting sentencing range) for those crimes. And the
ability to enhance one’s sentence based on uncharged
conduct does not turn on whether that conduct could
have been prosecuted in federal court.
In arriving at an appropriate sentence, “a judge may
appropriately conduct an inquiry broad in scope, largely
unlimited as to the kind of information he may consider,
14 No. 09-1556
or the source from which it may come. ” United States v.
Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 591 (1972); see
18 U.S.C. § 3661 (“No limitation shall be placed on the
information concerning the background, character, and
conduct of a person convicted of an offense which a
court of the United States may receive and consider for
the purpose of imposing an appropriate sentence.”). The
specific offense characteristics set forth in Chapter Two
of the Sentencing Guidelines and the adjustments set
forth in Chapter Three serve as guideposts helping to
establish where within the broad statutory range of
punishment a particular defendant’s sentence ought to
fall, in the judgment of the Sentencing Commission. As
such, they do not represent separate crimes but rather
sentencing factors, which are exempt from many of
the constraints that govern formal criminal charges. See
United States v. Watts, 519 U.S. 148, 154, 117 S. Ct. 633,
636 (1997) (“sentencing enhancements do not punish a
defendant for crimes of which he was not convicted, but
rather increase his sentence because of the manner in
which he committed the crime of conviction”) (citing
Witte v. United States, 515 U.S. 389, 402-03, 115 S. Ct. 2199,
2207-08 (1995)). Consequently, findings as to these
factors may be based on uncharged conduct, Witte, 515
U.S. at 402-03, 115 S. Ct. at 2207-08, and for that matter
on conduct of which the defendant has been acquitted,
id. at 155-57, 117 S. Ct. at 637-38.
The Guidelines instruct the court to consider all
“relevant conduct” in determining the base offense
level and the specific offense characteristics and adjust-
ments identified in Chapters Two and Three. U.S.S.G.
No. 09-1556 15
§ 1B1.3(a). “At its most basic, conduct must be ‘criminal
or unlawful’ to constitute relevant conduct.” United
States v. Schroeder, 536 F.3d 746, 752 (7th Cir. 2008) (quoting
United States v. Frith, 461 F.3d 914, 917 (7th Cir. 2006)).
Beyond that, it must fall into one of the four categories
of relevant conduct identified by the Guidelines. See
§ 1B1.3(a)(1)-(4); United States v. Nance, 611 F.3d 409, 415
(7th Cir.) (citing United States v. Soy, 413 F.3d 594, 613 (7th
Cir. 2005)), cert. denied, 131 S. Ct. 680 (2010). The first
of these categories, and the one that is most obviously
applicable here, includes all acts and omissions com-
mitted by the defendant during the offense of conviction.
§ 1B1.3(a)(1)(A). Despite its broad scope, this provision
does not authorize the sentencing court “to sweep in
uncharged, wholly unrelated criminality that occurred
contemporaneously with the charged conduct.” Nance, 611
F.3d at 416 (citing cases). However, so long as the contem-
poraneous, uncharged conduct has “some relation” to the
crime of conviction, it may appropriately be treated as
relevant conduct. Id. (emphasis in original); see also
§ 1B1.3(a)(2) (as to offenses which § 3D1.2(d) would require
to be grouped for sentencing purposes, relevant conduct
includes all acts and omissions by defendant that were
“part of the same course of conduct or common scheme or
plan as the offense of conviction”); § 3D1.2(d) (indicating
that firearms offenses governed by § 2K2.1 must be
grouped).
The 2005 Guidelines (which was the version in effect at
the time of Jones’s sentencing) called for a two-level
increase in the defendant’s offense level “[i]f any
firearm . . . had an altered or obliterated serial num-
16 No. 09-1556
ber . . . .” § 2K2.1(b)(4).7 (Effective November 1, 2006,
roughly eight months after Jones was sentenced, the
guideline was amended to specify a four-level increase,
in order to “reflect[ ] both the difficulty in tracing
firearms with altered or obliterated serial numbers and
the increased market for these types of weapons.”
U.S.S.G. App. C, Amendment 691.) In view of the Guide-
lines’ directive that relevant conduct be considered in
ascertaining specific offense characteristics such as this
one, § 1B1.3(a), the enhancement could be applied not
only to the firearms that Jones was charged with pos-
sessing, but to any additional firearm that he possessed
unlawfully during the charged offenses, § 1B1.3(a)(1)(A),
so long as there was “some relation” between his pos-
session of the uncharged firearm and the other offenses.
Nance, 611 F.3d at 416.
Jones possessed the .22-caliber rifle with the obliterated
serial number during the offenses to which he pleaded
guilty.8 The rifle was found in the same place—Jones’s
7
The commentary to the guideline, § 2K2.1, comment. (n.1),
incorporates the definition of “firearm” set forth in 18 U.S.C.
§ 921(a)(3), which in relevant part provides that the term
includes “any weapon (including a starter gun) which will or
is designed to or may readily be converted to expel a
projectile by the action of an explosive,” although antique
firearms are excepted.
8
As Jones has pointed out in the briefing, because he was
never charged with possession of the .22-caliber rifle, he did
not admit possession of the rifle when he pleaded guilty.
(continued...)
No. 09-1556 17
bedroom—as the eight other firearms charged in Count
Four of the superseding indictment (felon in possession
of a firearm), and of course Jones possessed it at the
same time as he possessed those other eight firearms
and, for that matter, at the same time as each of the
five other offenses alleged in the indictment. The fact
Jones had a pistol (the Desert Eagle) on his person as
he was selling crack cocaine nearby, not to mention the
additional crack discovered in his bedroom along with
the other guns, suggests that his possession of firearms,
including the rifle, was connected to his drug dealing
as well. There was thus an obvious and meaningful
relationship between Jones’s possession of the rifle and
the offenses of conviction. See United States v. Santoro,
8
(...continued)
However, there is no dispute that the rifle was found in his
bedroom along with the eight other firearms which were
referenced in the indictment and which he did admit to pos-
sessing in his guilty plea. Based on the discovery of the .22-
caliber rifle in Jones’s bedroom and Jones’s formal admission
that he possessed the other firearms found in the same
location, the probation officer had a reliable and sufficient
basis on which to find that Jones also possessed the rifle. And
in the absence of an objection to that finding, the district
court was entitled to adopt and rely upon it at sentencing.
E.g., United States v. Moreno-Padilla, 602 F.3d 802, 808-09 (7th
Cir. 2010), cert. denied, 131 S. Ct. 897 (2011). Indeed, it is clear
from the briefs that Jones has no quarrel with the proposition
that he possessed the rifle. His sole contention is that there is
no evidence he ever possessed the rifle in or affecting inter-
state or foreign commerce.
18 No. 09-1556
159 F.3d 318, 321 (7th Cir. 1998) (“ ‘the contemporaneous,
or nearly contemporaneous, possession of uncharged
firearms is . . . relevant conduct in the context of a felon-in-
possession prosecution’ ” pursuant to § 1B1.3(a)(2)) (quot-
ing United States v. Powell, 50 F.3d 94, 104 (1st Cir.
1995)); United States v. Wallace, 280 F.3d 781, 785 (7th
Cir. 2002) (uncharged possession of assault rifle by felon
four weeks after charged possession of revolver properly
was part of same course of conduct under § 1B1.3(a)(2));
United States v. Phillips, 516 F.3d 479, 483-84 (6th Cir. 2008)
(coll. similar cases); see also Nance, 611 F.3d at 416-17
(defendant’s uncharged possession of media containing
pornographic images of children at same time as his
charged receipt of other pornographic materials consti-
tuted relevant conduct under § 1B1.3(a)(1)(A)) (following
United States v. Ellison, 113 F.3d 77, 83 (7th Cir. 1997)
(defendant’s uncharged possession of magazines con-
taining child pornography contemporaneously with
his charged receipt of video containing child pornog-
raphy in sting operation was relevant conduct under
§ 1B1.3(a)(1)(A))).
Jones’s possession of the rifle was also unlawful. As
there is no evidence that the rifle ever moved in
interstate or foreign commerce, we must assume that
federal law did not prohibit Jones from possessing the
weapon. But Illinois law separately prohibits—and did
prohibit at the time of Jones’s offenses in October
2004—both the possession of a firearm by a convicted
felon as well as the possession of a firearm with an ob-
literated serial number, regardless of whether the firearm
had any link to interstate or foreign commerce. See 720
No. 09-1556 19
ILCS §§ 5/24-1.1(a) (2004) and 5/24-5(b) (as amended
effective Aug. 11, 2004 by § 5 of P.A. 93-906). Jones’s
possession of the rifle was thus doubly proscribed,
albeit under state rather than federal law, rendering
his unlawful possession of the rifle of a piece with his
possession of the other firearms.
The fact that Jones’s possession of the rifle constituted a
state rather than a federal crime does not preclude
its treatment as relevant conduct. The Guidelines them-
selves do not define relevant conduct so as to cate-
gorically exclude state offenses. See § 1B1.3(a). Only
when a state offense has already been punished by a
state court might it be excluded from consideration as
relevant conduct. See § 1B1.3, comment. (n.8). And
courts have repeatedly approved the consideration of
uncharged state offenses as relevant conduct in federal
court. See United States v. McElroy, 587 F.3d 73, 88-89 (1st
Cir. 2009) (Ripple, J., sitting by designation) (unpaid
state taxes); United States v. Maken, 510 F.3d 654, 657-60
(6th Cir. 2007) (unpaid state taxes); United States v. Baucom,
486 F.3d 822, 829 (4th Cir. 2007) (unpaid state taxes),
vacated on other grounds by Davis v. United States, 552 U.S.
1092, 128 S. Ct. 870 (2008); United States v. Martin, 157 F.3d
46, 51-52 (2d Cir. 1998) (possession of property stolen from
local businesses and which had not yet been transported
in interstate commerce); United States v. Powell, 124 F.3d
655, 664-66 (5th Cir. 1997) (unpaid state taxes); United
States v. Dickler, 64 F.3d 818, 830-31 (3d Cir. 1995) (fraudu-
lent bids on repossessed vehicles which were submitted
to banks prior to effective date of federal statute under
which defendants were charged, subject to condition
20 No. 09-1556
that government could identify some other federal or
state statute rendering such bids illegal); United States v.
Newbert, 952 F.2d 281, 284 (9th Cir. 1991) (falsified petty
cash vouchers which may have only violated state law
in absence of evidence they affected contracts with U.S.
government); see also United States v. Barringer, 248 Fed.
Appx. 754, 755 (7th Cir. 2007) (nonprecedential decision)
(concluding it would be frivolous for counsel to argue
that district court erred in considering as relevant
conduct uncharged vandalism of private vehicles, which
could only have been charged as a state crime; “nothing
in the sentencing guidelines precludes the court from
considering an uncharged state offense as relevant con-
duct”); United States v. Johnson, 324 F.3d 875 (7th Cir.
2003) (rejecting defendant’s contention that his state
narcotics-conspiracy conviction should have been con-
sidered as relevant conduct rather than part of his
criminal history, reasoning that it was not sufficiently
related to defendant’s federal charge of distributing
crack cocaine given the differences in time, narcotics
involved, and modus operandi, but drawing no distinc-
tion between state and federal crimes in reaching this
conclusion); United States v. Schilling, 142 F.3d 388, 394
(7th Cir. 1998) (noting without discussion that defendant
was sentenced on basis of unpaid state as well as
federal taxes). As the Second Circuit summarized in
Martin, “[A] federal district court may consider any
relevant conduct when sentencing a defendant, whether
or not the conduct is a federal crime. In the context of
U.S.S.G. § 1B1.3(a), jurisdictional considerations are
not relevant to a defendant’s criminal responsibility.” 157
No. 09-1556 21
F.3d at 51 (citations omitted). Thus, the lack of evidence
that the .22-caliber rifle ever crossed state or inter-
national boundaries is irrelevant; Jones’s possession of
the rifle need not have been within the power of the
federal government to prosecute in order for it to be
considered relevant conduct.9
9
As Jones’s counsel points out, the government never made
this particular argument below, when Jones was sentenced.
(Recall that the government proposed using Jones’s posses-
sion of the Feg semiautomatic pistol, which also had a
defaced serial number, rather than the .22-caliber rifle as the
basis for the enhancement.) But that omission does not
prevent the government from making the argument in the
present context. Jones’s claim of ineffective assistance
requires us to assess whether his counsel should have
objected to the enhancement and whether the failure to
object prejudiced him. This requires an after-the-fact assess-
ment of what arguments could have been made for and
against the enhancement. In this context, the government is
free to raise arguments that it did not raise at the time of
Jones’s sentencing—when, after all, the enhancement met
with no objection. To the extent that the government is ex-
panding upon or adding to the arguments that it raised at
Jones’s sentencing in support of the enhancement for the
obliterated serial number, it is doing no more than Jones
has done in contending that his counsel was obliged to object
to that enhancement.
As we have noted, Jones did belatedly contend in the section
2255 proceeding that the enhancement was improperly
imposed (without objection from his counsel). See supra n.5.
(continued...)
22 No. 09-1556
It is thus apparent that Jones’s counsel did not default
on his professional obligation to Jones by not objecting
to the two-level enhancement for possessing the rifle
with its defaced serial number. Jones’s uncharged posses-
sion of the rifle constituted relevant conduct which
was entirely appropriate for the district court to con-
sider in setting Jones’s offense level.
III.
Jones has not shown that his counsel’s representation
of him at sentencing was objectively deficient or that
he was prejudiced by any such deficiency. The sentence
enhancement that the district court imposed without
objection based on Jones’s uncharged possession of a .22-
caliber rifle with a defaced serial number was proper
despite the lack of proof that the rifle ever moved in
interstate commerce such that Jones’s possession of
that rifle constituted a federal crime. Unlawful conduct
need not be chargeable in federal court in order for it
to constitute relevant conduct under the Sentencing
Guidelines.
A FFIRMED
9
(...continued)
But the issue was never fully aired even in that proceeding
given that it was first raised in a footnote to the reply memo-
randum, which was the last brief filed.
3-15-11