In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2607
United States of America,
Plaintiff-Appellee,
v.
Willie T. Wallace,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:99CR131--James T. Moody, Judge.
Argued January 15, 2002--Decided February 11, 2002
Before Flaum, Chief Judge, and Coffey and
Easterbrook, Circuit Judges.
Flaum, Chief Judge. Willie T. Wallace
pled guilty to one count of violating 18
U.S.C. sec. 922(g)(1) (felon in
possession of a firearm) without the
benefit of a plea agreement. Before
entering his plea, Wallace moved the
district court to suppress evidence. The
district court held a hearing and denied
the motion. After pleading guilty, but
before sentencing, Wallace moved to
dismiss the indictment in its entirety.
The district court denied this motion as
well. Wallace appeals, challenging these
rulings and several sentencing
enhancements. For the reasons stated
herein, we affirm.
I. Background
A. The Predicate Felony
On March 26, 1998, Wallace was convicted
in the Circuit Court of Cook County for
unlawful use of a weapon, which, at the
time, was a Class 4 felony in Illinois.
However, Wallace’s conviction was later
vacated as void ab initio when the
Supreme Court of Illinois ruled that the
Act that had transformed the unlawful use
of weapon ("UUW") charge from a
misdemeanor to a felony violated the
Illinois Constitution. See People v.
Cervantes, 723 N.E.2d 265 (Ill. 1999). As
a result, the Circuit Court of Cook
County entered a misdemeanor conviction
nunc pro tunc.
B. Wallace’s Subsequent Activity
The current appeal arises from two
events that occurred after the initial
felony, but before the Circuit Court
vacated the conviction in May 2000. On
April 10, 1999, Hammond Police Officer
Michael Serrano responded to a call
concerning an armed robbery. The robbery
victim described the suspect as wearing a
red sweatshirt and black pants and stated
that he recognized the suspect from a
particular neighborhood in East Hammond,
Indiana. Based upon this description,
Serrano identified Wallace, who was
wearing a red sweatshirt and black pants,
as Wallace stood with approximately six
other individuals on residential
property. Serrano approached the group
with his gun drawn (the victim had stated
the suspect was armed) and asked all of
the individuals to place their hands on
the hood of a car parked in the driveway.
Serrano patted down Wallace and arrested
him after discovering a .38 caliber
revolver.
The second incident occurred on May 9,
1999. At approximately 2:35 a.m.,
officers were dispatched to a nightclub
in East Chicago to ensure the peaceful
dispersion of the club’s guests. While
there, Officer Nicholas Kokot observed
Wallace remove an assault rifle from the
trunk of a white Cadillac and place it in
the left rear passenger compartment of
the car. Officers stopped the vehicle and
arrested Wallace and two other occupants
for possession of an AK-47. After
determining that the weapon belonged to
Wallace, officers released the other
individuals.
C. Proceedings
On September 16, 1999, a federal grand
jury returned a two-count indictment
against Wallace. Both counts charged
Wallace with violations of 18 U.S.C. sec.
922(g)(1) (felon in possession of a
firearm). Wallace initially pled not
guilty, and the district court scheduled
a jury trial for November 15, 1999.
Subsequently, Wallace moved to postpone
his trial date on three separate
occasions (November 3, 1999; January 5,
2000; March 14, 2000). The magistrate
judge assigned to hear Wallace’s pre-
trial motions granted each continuance,
and the district court ultimately
scheduled a jury trial for March 22,
2000.
On March 9, 2000, Wallace filed a motion
to suppress evidence stemming from both
incidents. The district court held a
suppression hearing on the day trial was
scheduled to begin. After hearing
witnesses, the district court credited
the officers’ testimony regarding each
event, holding that Officer Serrano had a
legitimate basis to pat down Wallace and
his companions and that Officer Kokot
observed the illegal activity on May 9.
Accordingly, the district court denied
Wallace’s motion to suppress. Trial was
set to begin soon thereafter.
Immediately prior to the trial, and
after the district court had assembled
potential jurors, Wallace indicated that
he wanted to plead guilty to Count I of
the indictment. Citing a local rule, the
district court commented that all plea
agreements must be entered into at least
five days prior to the beginning of
trial. Wallace’s counsel responded that
two related events caused the failure to
comply with the local rule: (1) the
district court scheduled the trial earli
er than the parties had anticipated when
Wallace moved for a continuance before
the magistrate judge; and (2) an earlier
plea agreement proffered by the
government contained typographical errors
indicating Wallace was pleading guilty to
both Counts I and II. Upon further
questioning from the district court,
Wallace’s counsel conceded that the
government returned a corrected copy of
the plea agreement "the next day." The
district court ultimately accepted
Wallace’s guilty plea to Count I of the
indictment, while Count II was reserved
in abeyance until sentencing on Count I.
After Wallace entered his guilty plea
without the benefit of an agreement with
the government, but before sentencing,
the Supreme Court of Illinois vacated
Wallace’s March 1998 felony conviction
that had served as the predicate for the
felon in possession charge. As a
consequence, Wallace filed a "motion to
dismiss for lack of subject matter
jurisdiction." The district court denied
this motion after hearing argument from
the parties, sentenced Wallace to 51
months imprisonment and entered an order
dismissing Count II of the indictment. In
reaching this sentence, the district
court considered the offense charged in
Count II as relevant conduct in
determining Wallace’s base offense level.
Based upon testimony from the suppression
hearing, the court found by a
preponderance of the evidence that
Wallace possessed the AK-47 on May 9.
Wallace continues to dispute the fact
that he ever possessed the assault rifle.
The court also refused to award a two-
point departure for acceptance of
responsibility. Wallace appeals.
II. Analysis
Wallace first argues that the district
court "lacked subject matter
jurisdiction" once the Supreme Court of
Illinois vacated his felony conviction.
As the government appropriately notes,
Wallace’s argument is not really one of
subject matter jurisdiction, see United
States v. Martin, 147 F.3d 529, 531-33
(7th Cir. 1998), but rather a dispute
concerning whether the government proved
all of the elements necessary to sustain
a conviction under sec. 922(g)(1). That
question is easily answered because
Wallace necessarily admitted every
element comprising the offense charged
after he pled guilty. See United States
v. Broce, 488 U.S. 563, 569 (1989);
McCarthy v. United States, 394 U.S. 459,
466 (1969) ("a guilty plea is an
admission of all the elements of a formal
criminal charge."). The elements
comprising a sec. 922(g)(1) violation
are: (1) possession of a firearm; (2)
that had traveled in interstate commerce;
(3) by a felon. See United States v.
Quintanilla, 218 F.3d 674, 679 (7th Cir.
2000). By pleading guilty, Wallace
admitted that he had a prior felony
conviction, and he may not challenge that
admission before this court./1
We may dispose of Wallace’s appeal of
the district court’s denial of his motion
to suppress for the same reason. Wallace
did not reserve the right to appeal any
ruling stemming from the suppression
hearing, either in writing or orally
before the district court. Furthermore,
Wallace’s guilty plea rendered irrelevant
the evidence obtained during the two
incidents because Wallace admitted he
possessed a firearm in violation of sec.
922(g)(1).
That leaves Wallace’s appeal of the
district court’s sentencing
determinations. Here, Wallace raises two
arguments: (1) the district court
erroneously considered the charges in
Count II as relevant conduct during
sentencing; and (2) the district court
erred in refusing to depart downward
based upon acceptance of responsibility.
Both arguments are without merit.
In calculating the base offense level,
the district court considered as relevant
conduct the charges in Count II of the
original indictment and found by a
preponderance of the evidence presented
at the suppression hearing that Wallace
possessed the assault rifle. The
Sentencing Guidelines define relevant
conduct with respect to offenses that
require grouping under sec. 3D1.2(d) as
"all acts and omissions . . . that were
part of the same course of conduct or
common scheme or plan as the offense of
conviction." Section 3D1.2 (d), in turn,
specifies certain crimes that require
grouping, including crimes governed by
sec. 2K2.1 (unlawful possession of a
firearm). Consequently, the Guidelines
required the district court to consider
relevant conduct in calculating Wallace’s
base offense level.
There can be no question that the
district court acted properly when
considering the charges contained in
Count II of the original indictment as
relevant conduct under the Sentencing
Guidelines. In United States v. Santoro,
159 F.3d 318 (7th Cir. 1998), this court
cited with approval a First Circuit rule
that "the contemporaneous, or nearly con
temporaneous, possession of uncharged
firearms is . . . relevant conduct in the
context of a felon-in-possession prosecu
tion." Id. at 321 (citing United States
v. Powell, 50 F.3d 94, 104 (1st Cir.
1995)); see also United States v. Windle,
74 F.3d 997, 1000-01 (10th Cir. 1996)
(additional weapons violations should be
included as relevant conduct because
firearms possessed during a four to five
month period meet the "same course of
conduct" requirement in sec. 3D1.2).
Here, Wallace twice possessed firearms
approximately four weeks apart. This
conduct unequivocally falls within the
relevant conduct definition announced in
Santoro, and the district court properly
included it when calculating Wallace’s
base offense level.
Wallace’s last contention--that the
district court erred in refusing to
depart downward for acceptance of
responsibility--must also fail.
Sentencing Guideline sec. 3E1.1 states
that the district court should decrease
the base offense level by two levels "if
the defendant clearly demonstrates
acceptance of responsibility for his
offense." Before the district court--and
again before this court--Wallace denied
that he ever possessed the assault rifle
described in Count II of the indictment.
While it is true that the district court
ultimately dismissed Count II, it strains
credulity to argue for an acceptance of
responsibility departure in this case.
Wallace’s guilty plea is the only factor
that he may cite in support of the
downward departure, and it is not
sufficient for at least three reasons.
First, we have often repeated that the
mere fact that a defendant pleads guilty
does not, standing alone, entitle him or
her to the departure. United States v.
Simmons, 218 F.3d 692, 696 (7th Cir.
2000) (citing United States v. Branch,
195 F.3d 928, 937 (7th Cir. 1999)).
Second, Wallace continues to deny
possessing the assault rifle charged in
Count II, even though the district court
considered that act relevant conduct in
determining his base offense level. By
definition, then, he is not entitled to
the departure. See U.S. Sentencing Guidelines
Manual sec. 3E1.1 n. 1(a) (listing
"truthfully admitting or not falsely
denying any additional relevant conduct"
as one important factor in awarding the
two-level departure for acceptance of
responsibility) (emphasis added); United
States v. Sierra, 188 F.3d 798, 804 (7th
Cir. 1999) ("A defendant does not accept
responsibility when he denies committing
criminal actions and relevant conduct
which the district court attributes to
him.") (emphasis added). Finally, Wallace
did not decide to plead guilty until
after the district court denied his
motion to suppress and assembled jurors
for trial. Such eleventh-hour tactics do
not warrant the acceptance of
responsibility departure. See United
States v. Ewing, 129 F.3d 430, 436 (7th
Cir. 1997).
III. Conclusion
For the foregoing reasons, we AFFIRM
Wallace’s conviction and sentence.
FOOTNOTE
/1 Wallace’s argument lacks merit in any event. The
Supreme Court of the United States has held that
an offense may be predicated upon a prior state
court felony conviction, even though the predi-
cate conviction is subject to collateral attack.
Lewis v. United States, 445 U.S. 55, 62 (1980).
The Court in Lewis upheld the defendant’s gun
possession conviction because the relevant stat-
ute contained no exception "for a person whose
outstanding felony conviction ultimately [turned]
out to be invalid for any reason." Id. at 62. We
have repeatedly reaffirmed this principle despite
different permutations of the change in status
regarding the predicate felony. See United States
v. Lloyd, 184 F.3d 695 (7th Cir. 1999) (conviction
discharged and dismissed following probation
pursuant to Illinois first-time offender plan);
United States v. Lee, 72 F.3d 55 (7th Cir. 1995)
(dealing with defendant’s status after conviction
was expunged ab initio). These cases reinforce
the straightforward principle that the only
relevant question is the defendant’s status at
the time he was charged with unlawfully possess-
ing a firearm.