In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2917
United States of America,
Plaintiff-Appellee,
v.
Warren Charles,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-CR-1--Rudolph T. Randa, Judge.
Argued January 11, 2001--Decided February 1,
2001
Before Flaum, Chief Judge, and Cudahy and
Posner, Circuit Judges.
Flaum, Chief Judge. Warren Charles
pleaded guilty to one count of inducing a
false and fictitious statement in
connection with the purchase of a
firearm, and two counts of being a felon
in possession of a firearm. Upon
recommendation by the government, the
district court increased Charles’s
sentencing level pursuant to U.S.S.G.
sec.2K2.1(b)(5), which provides for a
four-level increase for possessing a
firearm in connection with another felony
or transferring a firearm with knowledge,
intent, or reason to believe that it
would be used in connection with another
felony. On appeal, Charles contends that
there was insufficient evidence to
support the four-level increase. For the
reasons stated herein, we affirm the
district court’s decision.
I. BACKGROUND
On September 28, 1998, Shawna Sims
purchased two Smith and Wesson semi-
automatic handguns from Badger Guns &
Ammo, located in Milwaukee, Wisconsin. At
the time of the acquist, Sims signed a
statement attesting that she was
purchasing the guns on her own behalf.
This was not true. Immediately upon
completing her transaction with Badger
Guns, Sims transferred the weapons to the
defendant, Warren Charles. Since Charles
was a convicted felon--and thus unable to
procure guns from federally licensed gun
dealers on his own--he relied upon such
straw purchases for all his weapons
needs. In fact, Charles admitted to
having obtained six handguns by means of
such straw purchases. According to
Charles, upon receiving the two handguns
on the 28th, he sold them to a friend,
Derrick Waller.
During this time period, Charles and his
long-time girlfriend separated. Charles
was deeply angered by this parting, and
blamed the girlfriend’s family for
causing the breakup. On October 6, 1998,
James Love, the brother of Charles’s
girlfriend, reported that his residence
had been fired upon. Cartridge casings
found at the scene were traced to one of
the guns purchased by Sims on September
28. Approximately two weeks later,
Shirley Love, the mother of Charles’s
girlfriend, was shot at as well. She
reported to police that, "shortly before"
the shooting, she had seen Charles,
Waller, and two others "in the area."
Cartridge casings found at the scene
matched the ones found after the October
6 shooting.
On January 10, 1999, Milwaukee Police
Officers stopped an automobile being
driven by Derrick Waller. Charles was
identified as the passenger in the car.
The police searched the vehicle and
discovered, hidden in the driver’s side
rear window speaker compartment, the .357
Smith & Wesson firearm used in the two
October shootings. As a result, Waller
was arrested for carrying a concealed
weapon, and being a felon in possession
of a firearm. While Charles was not
arrested at that time, on April 26, 2000,
a three-count information was filed in
the United States District Court for the
Eastern District of Wisconsin against
him. Count One charged Charles with
knowingly inducing, aiding or abetting a
false and fictitious statement to be made
in the acquisition of a firearm, in
violation of 18 U.S.C. sec. 922(a)(6) and
18 U.S.C. sec. 2. Counts Two and Three
charged Charles with being a felon in
possession of a firearm in violation of
18 U.S.C. sec. 922(g)(1). On May 4, 2000,
Charles waived his right to indictment,
and pursuant to a plea agreement, entered
a plea of guilty to the three-count
information.
The presentencing report ("PSR"), as
well as the government in the plea
agreement, recommended that, for
sentencing purposes, Charles receive a
four-level increase pursuant to U.S.S.G.
sec. 2K2.1(b)(5). That Guideline provides
that:
If the defendant used or possessed any
firearm or ammunition in connection with
another felony offense; or possessed or
transferred any firearm or ammunition
with knowledge, intent, or reason to
believe that it would be used or
possessed in connection with another
felony offense, increase by 4 levels.
Despite Charles’s objection, the district
court found the four-level increase
appropriate. The court sentenced Charles to
105 months incarceration, a $2,000 fine,
supervised release for three years, and a
mandatory special assessment of $300.
Charles now appeals, arguing that there was
insufficient evidence to support his
sentence enhancement.
II. DISCUSSION
We review a district court’s application
of the sentencing guidelines de novo, but
defer to the court’s finding of facts
unless they are clearly erroneous. United
States v. Payton, 198 F.3d 980, 982 (7th
Cir. 1999). "A factual determination is
clearly erroneous only if, after
considering all the evidence, the
reviewing court is left with the definite
and firm conviction that a mistake has
been committed." United States v. Messino,
55 F.3d 1241, 1247 (7th Cir. 1995)
(internal quotation marks omitted).
Additionally, a district court’s choice
between two permissible inferences from
the evidence cannot be clearly erroneous.
United States v. Wyatt, 102 F.3d 241, 246
(7th Cir. 1996) (citing Anderson v.
Bessemer City, 470 U.S. 564, 574 (1985)).
Charles argues that there was
insufficient evidence to support the four-
level increase he received pursuant to
U.S.S.G. sec. 2K2.1(b)(5). Specifically,
he contends that subsequent to acquiring
the handgun from Sims, he sold it to
Waller. According to Charles, Waller
purchased the gun for protection purposes,
and it was merely a coincidence that
Charles happened to be in the vehicle when
it was stopped by police. Furthermore,
Charles puts forth that the only evidence
placing him in the vicinity of Shirley
Love’s shooting is her statement that she
had seen him in the area earlier. Taken
together, he argues, there was
insufficient evidence for the district
court to find, by a preponderance of the
evidence, that Charles either possessed
the firearm in connection with the
shootings or transferred the firearm with
knowledge, intent, or reason to believe
that it would be used in connection or
possessed in connection with the shooting.
Charles’s complaint is not entirely
without merit. We too are troubled by the
limited evidence that the government has
presented in support of an enhancement of
four-levels. In this instance, because of
Charles’s enhancement, his offense level
went from 19 (which under his Category V
Criminal History translates into a
sentencing range of 57-71 months) to 23
(which translates into a range of 84-105
months). The district court, adopting the
PSR recommendation, sentenced Charles to
the high end of that range. Yet, while
Charles’s enhancement meant the
possibility of an additional 2 years and
10 months imprisonment, the government was
content to rest its recommendation on
broad statements and inferences. For
example, we note that neither the record
nor the government at oral argument could
provide any clarification on how long
before the shooting Shirley Love saw
Charles or the size of the "area" in which
she saw him.
Nonetheless, we cannot conclude that the
district court clearly erred in
determining the enhancement appropriate.
Charles admits that he purchased a .357
caliber Smith & Wesson from Sims. It is
also uncontested that the same .357 was
used to shoot at James Love’s residence
and at Shirley Love. Furthermore, that
same weapon was found in an automobile
occupied by Waller and Charles.
Additionally, the record indicates that
"bad blood" existed between Charles and
the Loves and that Charles had been
spotted at some point before the shooting
in the area where Shirley Love was shot
at. The district court, based on that
evidence, reached the conclusion that even
if Charles were not prevaricating
regarding his transferring of the gun to
Waller, the enhancement was still
appropriate. Considering (1) Charles’s
proximity to Waller at the time of the
shooting, (2) Charles’s presence with
Waller at the time the gun was discovered
by police, and (3) the fact that Waller
had no independent reason to attack James
and Shirley Love, the court determined
that if Charles did transfer the weapon to
Waller, he did so with at least reason to
believe, if not intent or knowledge, that
it would be used to shoot at Shirley Love.
Therefore, regardless of who actually
fired the shots at Shirley Love, the
enhancement was justified./1 Thus, that
the weapon was used or possessed in
connection with another felony, or
transferred with knowledge, intent or
reason to believe it would be used or
possessed in connection with another
felony, was a logical and permissible
inference made by the district court,
based on the available evidence. See e.g.
United States v. Rogers, 46 F.3d 31 (7th
Cir. 1995) (finding that the district
court did not err in determining that the
appellant transferred weapons with reason
to believe they would be used in felonies,
when that determination was based on a
reasonable inference drawn from the
circumstances). We find, in this instance,
that the district court’s inference is not
clearly erroneous.
III. CONCLUSION
For the foregoing reasons, we Affirm the
decision of the district court.
/1 We note that even if at the time Charles
transferred the gun to Waller he did not have
intent that it be used to shoot at Shirley Love,
the district court’s decision, in light of its
finding that Charles was a party to the shooting,
would still be correct. In United States v. Payton,
we held that the government is not required to
establish that the defendant’s physical possession
of the weapon was simultaneous with the defendant’s
intent to use the weapon in connection with another
felony. 198 F.3d at 983. Thus, once Charles
transferred the weapon to Waller, his
subsequentintent that it be used to commit a felony
would satisfy for enhancement purposes.