In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2513
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES W. GARNER, JR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 57—Rudolph T. Randa, Chief Judge.
____________
ARGUED APRIL 3, 2006—DECIDED JULY 26, 2006
____________
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit
Judges.
ROVNER, Circuit Judge. A jury found James W. Garner,
Jr., guilty of illegally possessing firearms and ammunition.
The district judge ordered him to serve a prison term of 120
months, a term within the range called for by the Sentenc-
ing Guidelines. Garner appeals his sentence, contending
first that the court improperly adjusted his Guidelines
offense level upward for obstruction of justice based on
findings that were both improper and inadequate and
second that a Guidelines sentence was unreasonable in this
case.1 We affirm.
1
In his briefs, Garner also challenged his conviction on the
ground that his trial counsel was ineffective. At argument, the
(continued...)
2 No. 05-2513
I.
On January 13, 2003, Elm Grove, Wisconsin police officer
trainee Sandra Brown and her field training officer John
Krahn were randomly running records checks of automobile
license plates while on patrol as part of Brown’s training. In
the course of that exercise, they conducted a check on a gray
Plymouth minivan they observed in traffic. The check
revealed that the vehicle’s registration had been suspended
based on an emissions violation as well as an unpaid
parking citation. The officers stopped the minivan, and
their ensuing encounter with Garner, who was driving the
vehicle, was captured by the patrol car’s audio and video
recording equipment. When the officers learned that
Garner’s driver’s license had been suspended, they asked
him to step out of the vehicle and arrested him. Krahn
searched Garner’s person pursuant to the arrest and
discovered a clear plastic ziplock baggie containing fourteen
nine-millimeter Luger bullets in the pocket of his jacket. By
way of explanation, Garner said that he was on his way to
a shooting range. When asked if he had a gun in the van,
Garner at first said no but then acknowledged that he did.
A Star Bonifacio Echeverria semiautomatic nine-millimeter
pistol was found in a compartment underneath the front
passenger seat of the vehicle. The gun was loaded, with one
bullet having been chambered and six additional bullets in
the magazine. When asked about the gun, Garner said that
(...continued)
court invited Garner’s counsel to consider whether Garner wished
to pursue the ineffectiveness claim on direct appeal. See, e.g.,
United States v. Spence, No. 05-1848, 2006 WL 1598103, at *1 (7th
Cir. June 13, 2006). Garner subsequently withdrew
the ineffectiveness claim, reserving it for collateral review.
Consistent with Garner’s wishes, we acknowledge the with-
drawal and make no ruling on the claim of attorney ineffective-
ness.
No. 05-2513 3
“he had gotten it off some dude in the street in Milwaukee”
and that he carried it for protection. R. 86 at 50; Gov. Ex. 2a
at 6-7.
Based on these events, Garner subsequently was con-
victed in Wisconsin state court of carrying a concealed
weapon. That offense was a misdemeanor, and Garner
received a fine only. No federal charges were filed against
Garner at that time.
Roughly one year later, on January 27, 2004, Milwaukee
County sheriff’s detectives Luke Chang and Joel Streicher
stopped the Plymouth van on the south side of Milwaukee
after discovering that the van’s registration had been
suspended for one or more unpaid parking citations. Garner
was again driving the van. In the course of the stop, while
Streicher was speaking with Garner, Chang shone his
flashlight into the van and noticed what looked like a gun
lying on the floor, between and to the rear of the front seats.
After Garner confirmed that it was indeed a gun, he was
ordered out of the vehicle. Chang later retrieved the gun—a
.40 caliber Hi-Point semi-automatic pistol—and removed
eight rounds of ammunition from the magazine and one
round from the chamber. Streicher asked Garner whether
there was “anything else” in the van. R. 87 at 204. Garner
replied that “there’s a sawed-off shotgun in the back.” Id.
Chang found the shotgun—a .12 gauge Birdwing High
Standard shotgun, wedged between the third-row seat and
the wheel well. Obvious blade and file markings confirmed
that the barrel of the gun had been shortened; the stock,
wrapped in electrical tape, had been shortened as well. The
shotgun was not loaded. Elsewhere in the van officers
discovered two boxes of .40 and .45 caliber ammunition, a
Hi-Point “Ghost Ring” night sight, and two spent .40 caliber
casings. Garner was placed under arrest when the detec-
tives learned that his driver’s license had been revoked and
that there was an outstanding warrant for his arrest on a
probation violation.
4 No. 05-2513
Garner was taken to the sheriff’s department and advised
of his constitutional rights. He told the officers that he had
purchased the Hi-Point pistol for $100 from a man at his
mother’s hair salon. As for the shotgun, he said that he had
found it when he was removing effects from his grandfa-
ther’s home and had left the gun in the van while in the
process of moving various belongings. Garner ultimately
wrote and signed a statement to this effect. Gov. Ex. 18-A.
Prior to both the 2003 and 2004 vehicle stops, Garner had
been convicted of offenses that qualified as misdemeanor
crimes of domestic violence under 18 U.S.C. § 921(a)(33)(A).
Generally speaking, an offense constitutes a misdemeanor
crime of domestic violence if it has as an element the use or
attempted use of force and the victim of the offense was the
defendant’s current or former spouse, someone with whom
he lived, or a person with whom he had parented children.
Id. Federal law prohibits a person convicted of such an
offense from possessing a firearm or ammunition in inter-
state commerce. 18 U.S.C. § 922(g)(9).
Garner was charged in a superseding indictment with
three weapons-related charges. First, based on the ammuni-
tion found in his possession in the January 13, 2003, vehicle
stop, Count One charged Garner with knowing possession
of ammunition following a misdemeanor conviction for
domestic violence, in violation of section 922(g)(9). Second,
based on the sawed-off shotgun found in Garner’s van on
January 27, 2004, Garner was charged with possessing a
firearm not registered to him in the National Firearms
Registration and Transfer Record, in violation of 26 U.S.C.
§ 5861(d). Finally, based on his possession of the Hi-Point
pistol as well as the shotgun on January 27, 2004, Garner
was charged with knowingly possessing a firearm following
a misdemeanor conviction for domestic violence, in violation
of section 922(g)(9). R. 37.
Garner testified in his own defense at trial. As relevant
here, Garner claimed that the Hi-Point pistol found in his
No. 05-2513 5
van on January 27, 2004, was not his (he said that the
written statement he had given to the sheriff’s detectives
was not true) but rather belonged to someone by the name
of “Tom.” R. 88 at 393-94. However, Garner’s close friend,
Seymour “Itchy” Samuel, testified that Thomas Sankey (the
“Tom” to whom Garner referred) had purchased that gun for
Garner in early January 2004. Samuel explained that
Garner had given him cash for the gun and that Samuel
had then arranged for Sankey to purchase the pistol for
Garner along with a second firearm for Samuel. Following
Garner’s arrest on January 27, Samuel contacted Sankey at
Garner’s request and asked him to falsely represent to
investigators that the Hi-Point pistol was his (Sankey’s) and
that he had simply forgotten the gun in Garner’s vehicle
after using it at a shooting range. Both Samuel and Sankey
testified that Samuel made that request of Sankey. More-
over, electronically-monitored telephone conversations
between Garner and Ruth McDowell (his mother) and
Garner and Diean Pittman (the mother of several of his
children) confirmed that Garner had asked Samuel to solicit
such a statement from Sankey. Gov. Exs. 20(b), 20(d), 21(d),
21(e); see also R. 90 at 4-6. Sankey was not wild about the
idea and did not go along with Garner’s plan.
A jury convicted Garner on all three counts of the indict-
ment. For sentencing purposes, the district court assigned
Garner an offense level of 24, which reflected enhancements
for having possessed from three to seven firearms, see
U.S.S.G. § 2K2.1(b)(1)(A) (2004),2 and for obstruction of
justice, § 3C1.1. Coupled with a criminal history category of
VI, that offense level called for a sentence of 100 to 125
months. The government urged the court to impose a
sentence of ten years based on Garner’s history of violence
2
The district court calculated Garner’s Guidelines sentencing
range using the 2004 version of the Guidelines. Therefore, all
of our citations to the Guidelines are to that version.
6 No. 05-2513
against women and repeated weapons offenses, among other
factors. Garner’s counsel urged the court to impose a
sentence of just two years, arguing among other things that
Garner’s federal convictions were for purely status offenses,
that he was responsible for raising five of his children, and
that his criminal history comprised misdemeanor offenses
only. The court sided with the government and ordered him
to serve a prison term of 120 months.
II.
A.
As a result of the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the
Sentencing Guidelines are no longer binding. However, a
district court remains obliged to consult the Guidelines and
consider imposing a sentence within the advisory Guide-
lines range. E.g., United States v. Laufle, 433 F.3d 981, 987
(7th Cir. 2006). For that purpose, the district court must of
course calculate the Guidelines range accurately. E.g.,
United States v. Robinson, 435 F.3d 699, 701 (7th Cir.
2006). Garner believes that the court erred when it found
that he had obstructed justice and enhanced his offense
level accordingly. Specifically, Garner asserts that the court
based the obstruction enhancement on grounds that were
improper and that the court did not make findings adequate
to support the enhancement.
Garner’s first challenge is based on certain remarks that
the district judge made prior to imposing the enhancement.
The court referenced two things in these remarks. First, the
court noted that Garner had made a variety
of representations to the probation officer about his educa-
tion (along with other aspects of his history and back-
ground) that the probation officer either had determined to
be inaccurate or had been unable to verify. Second, and
more importantly, the court referred to Garner’s prior
No. 05-2513 7
equivocation over whether to plead guilty to state charges
of battery and theft of moveable property. A transcript of a
hearing in 2000 on those charges, during which the parties
discussed with the presiding judge (Judge Conen) the
possibility of Garner pleading no contest to the charges
pursuant North Carolina v. Alford, 400 U.S. 25, 91 Ct. 160
(1970), revealed that Garner’s reluctance to make up his
mind had contributed to a two-day delay in the start of the
trial while the government’s witnesses were kept waiting.
R. 79 Ex. 1.3 As is evident from the court’s remarks, the
court saw both of these matters as relevant to an obstruc-
tion finding:
Relative to the obstructing, this ties in with this lack of
verification of all these things that were stated on the
record relative to graduation from St. John’s; Hawaii
education; the U.W.M. education; these types of things.
And there is a certain connection here, too. And the
Court based on experience sees it as such. The reluc-
tance to admit one’s guilt before Judge Conen and that
Alford plea situation. Two days to make up one’s mind
as to whether I did something or I didn’t do something,
it’s no wonder that Judge Conen said I will give you a
minute to make up your mind. But this in the second
day of trial when you had ample opportunity to consult
with Scott Wales [his attorney] and talk about this.
3
The government submitted the transcript of that hearing, along
with the transcript of a sentencing hearing in another state
prosecution, in response to Garner’s contention that his eventual
guilty pleas in those two cases had been coerced and that his
convictions therefore should not be counted in the assessment
of his criminal history. See Addendum to Pre-Sentence Report
at 2-3 (discussing Garner’s objections to ¶¶ 53-56 of the Pre-
Sentence Report). The government viewed the transcripts as proof
that Garner had in no way been coerced in either proceeding.
R. 79 at 1-2.
8 No. 05-2513
And there is a reluctance here on the part of you to
recognize error. And as the Court said, there is this
huge blank spot and failure to recognize the real
deficiencies when it comes to admitting and fessing up
to this real problem. And that’s the case here with this
not guilty plea. . . .
R. 90 at 48. Garner maintains that his statements to the
probation officer regarding his education were irrelevant
and so were not a proper basis for the obstruction en-
hancement. The fact that he equivocated over his plea in
the prior state prosecution involved the exercise of his
constitutional right to plead not guilty and hold the state to
its burden of proof, and so Garner contends that the court
could not permissibly consider his hesitation in deciding
whether he had obstructed justice.
When placed in context, however, these remarks do not to
our mind suggest that the court was making a finding of
obstruction based on inappropriate considerations. The
court’s observation that Garner was reluctant to recognize
his own mistakes was rendered as part of a broader assess-
ment of Garner and his criminal history. At the outset of
the sentencing hearing, the court recognized that after
Booker, its task was to determine a sentencing range by
applying the relevant provisions of the Sentencing Guide-
lines, consider that range as presumptively reasonable but
not binding, and independently determine an appropriate
sentence. R. 90 at 2-3. After entertaining counsel’s respec-
tive arguments as to the relevant sentencing factors and
their sentencing recommendations, and after hearing
Garner’s allocution, the court then turned to the sentencing
factors identified in 18 U.S.C. § 3553(a). R. 90 at 39. The
court proceeded to consider the gravity of Garner’s offense,
his history and character, the sentencing goals of rehabilita-
tion, deterrence of criminal conduct, and just punishment,
and the need to protect the community. Id. at 39-40. It was
in the discussion of Garner’s history and character that the
No. 05-2513 9
court raised Garner’s reluctance to recognize and take
responsibility for his failings. The court discerned from
Garner’s criminal history an unwillingness to obey rules, a
tendency to lose his temper with and to batter women, and
a practice of keeping guns at hand. Id. at 43-47. The court
also noted that Garner previously had made the very same
expression of remorse, pledge of reform, and assurance that
he was a good father that he and his counsel were now
arguing in support of a lower sentence. Id. at 43-44.4 The
court saw in Garner’s repeated crimes and promises of
change a “blind spot,” a “failure of self-recognition” that,
together with his evident willingness to possess firearms in
violation of the law, contributed to a very real risk that
Garner’s pattern of misconduct might one day result in the
infliction of grave harm on others. Id. at 44; see also id.
at 45-47.
It was against this backdrop that the court made the
remarks Garner has highlighted here. The court cited
Garner’s equivocation over whether to enter a guilty or
Alford plea in a prior case as among the circumstances
signaling that Garner was slow to acknowledge and take
responsibility for his criminal acts. And as we under-
stand the court’s remarks, the court cited certain uncon-
firmed or discredited representations by Garner about his
educational history as evidence of his overall lack of candor.
Both observations are consistent with the court’s overall
concern that Garner was not inclined to accept responsibil-
ity for his criminal conduct and that his promises of
reformation were not genuine.
The court said that Garner’s obstruction of justice “tie[d]
in” with these two observations, id. at 48, but we under-
4
The court cited the transcript of the sentencing hearing in a
prior state prosecution, during which Garner made many of the
same arguments in favor of a lenient sentence that he was now
making in federal court. R. 90 at 43-44; see R. 79 Ex. 2 at 23-25.
10 No. 05-2513
stand the court to have meant that they did so in terms of
context, not that they constituted a basis for the court’s
finding of obstruction. In fact, the court went on to cite a
specific ground for the obstruction finding: that Garner had
attempted to suborn false statements from Sankey regard-
ing the Hi-Point semi-automatic pistol found in his posses-
sion in January 2004. Id. at 48-49.
As we have noted, Garner had tried (unsuccessfully) to
have Sankey tell the authorities that the Hi-Point pistol
found in the van with Garner in January 2004 belonged
to Sankey and that he had simply left it in the van by
mistake. The testimony of both Sankey and Samuel, along
with the recorded conversations Garner had with his
mother and with Pittman, supplied ample proof of that
effort. And it is a fair inference that what Garner wanted
Sankey to say about the gun, like Garner’s own trial
testimony on the subject, was false: the notion that the gun
belonged to Sankey was inconsistent not only with the
testimony of Samuel and Sankey but also with Garner’s
own post-arrest statements to the authorities acknowl-
edging that the gun was in fact his. The district court
thus had a solid basis on which to conclude that Garner had
attempted to obstruct justice in his unsuccessful attempt to
solicit help from Sankey.
Still, Garner maintains that even if the court had a
potentially appropriate ground for the obstruction enhance-
ment, the court did not make findings adequate to support
the enhancement on that basis. Garner points out that the
probation officer recommended the enhancement based on
Garner’s own trial testimony, which the officer viewed as
willfully false insofar as Garner disclaimed ownership of the
Hi-Point pistol. Pre-Sentence Report (“PSR”) ¶¶ 18, 32. Yet,
it is not clear that the court ever made a finding of its own
on this point. The sentencing transcript suggests that the
court was inclined to agree with the probation officer that
Garner had perjured himself on the stand. The court
No. 05-2513 11
said, for example, that Garner’s “stories fluctuated all over
the place,” R. 90 at 49, and that his story-telling went
beyond factual “misinterpretations,” id. More to the point,
the court observed that the right to plead not guilty “doesn’t
give one the right to come to court and tell something that’s
totally out of whack, way out of line.” Id. at 48. Yet, the
court never specified what aspect of Garner’s testimony that
it found to be false. By contrast, the probation officer did
make such a finding in the PSR. But so far as we can
discern, the court never adopted the findings set forth in the
PSR, so we cannot rely on those findings as a basis for the
enhancement. See, e.g., United States v. Heath, 447 F.3d
535, 540-41 (7th Cir. 2006).
Nonetheless, the court did reference Garner’s attempt
to solicit false statements from Sankey, and that alone
supports the enhancement. See, e.g., United States v. Davis,
442 F.3d 1003, 1009 (7th Cir. 2006). Notably, both the
probation officer (PSR ¶ 18) and the government (Adden-
dum to PSR at 2; R. 90 at 4-6) had identified that attempt
as a second ground for the obstruction enhancement. For its
part, the court quite clearly was persuaded that Garner had
attempted to convince Sankey to falsely inform investiga-
tors that the Hi-Point belonged to Sankey rather than
Garner: the court stated that it had listened to the tapes of
Garner’s conversations and that it viewed those conversa-
tions as evidence of “an attempt to suborn Mr. Sankey,
trying to get to him through Itchy, or Seymour Samuel . . .
.” R. 90 at 48-49. And the court evidently had this conduct
in mind when it subsequently referred to Garner’s “effort to
alter the fact finder’s perception . . . by aggressive . . . [a]nd
purposeful activity.” Id. at 49. It is true that the court’s
ultimate remarks concerning the enhancement for obstruc-
tion were somewhat passive: “So if the Court was making a
ruling, and I suppose it has to, it wouldn’t find that that
enhancement is undue.” Id. But the court plainly under-
stood that it was obliged to make a finding that Garner had
12 No. 05-2513
“attempted to obstruct or impede[ ] the administration of
justice,” U.S.S.G. § 3C1.1, and the record leaves no doubt
that the court did so find, based on the effort to secure false
statements from Sankey.
The court did not err in imposing the enhancement.
B.
Garner contends that the 120-month prison term imposed
by the district court is unreasonable in light of circum-
stances which, in his view, call for a lesser sentence. He
points out first that the criminal conduct underlying his
convictions in this case was not inherently dangerous:
beyond possessing the firearms, Garner did not (so far
as the record reveals) use them for the commission of a
separate crime or in a manner that harmed anyone. Second,
Garner believes that the sentence is out of proportion with
his character and history. Garner emphasizes that although
he was assigned the highest possible criminal history
category of VI under the Guidelines, his prior convictions
were all misdemeanors and in most instances he did not
serve any jail time. He adds that because he is a father and
has been responsible for raising five of his twelve children,
a lengthy period of incarceration will impose undue burdens
on society as well as his children. Finally, consistent with
his challenge to the obstruction enhancement, Garner again
suggests that his sentence was based in part upon the
district court’s consideration of inappropriate factors,
including the exercise of his constitutional rights.
As the district court recognized, a sentencing court
must consult the Guidelines along with the general sentenc-
ing factors set forth in 18 U.S.C. § 3553(a) and determine a
reasonable sentence. Booker, 543 U.S. at 259-60, 125 S. Ct.
at 764-65; Laufle, 433 F.3d at 987. A sentence within a
properly calculated Guidelines range is presumptively
reasonable. United States v. Mykytiuk, 415 F.3d 606, 608
No. 05-2513 13
(7th Cir. 2005). A defendant challenging such a sentence
bears the burden of demonstrating that it is unreasonable.
Id. Garner has not met that burden.
We note that the district court thoroughly complied with
its sentencing obligations. The court properly calculated the
Guidelines range. It recognized that it was obligated to
consider a sentence within that range but was not bound to
do so. And the court considered at length the sentencing
factors set forth in section 3553(a). There can be no argu-
ment that the court’s methodology was flawed.
Moreover, Garner has not shown that the sentence the
district court imposed was unreasonable. It is true that
Garner’s convictions were based solely on his possession
of firearms and ammunition, and there is no evidence
indicating that Garner used or intended to use those
weapons to commit a separate crime5 or in a way that
resulted in an injury to anyone. But that is not at all
unusual with status-based offenses like this one. The
statutory ban on the possession of weapons by felons
recognizes the risk inherent in arming someone with a
proven inclination to engage in serious criminal activity.
See Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 118-
19, 103 S. Ct. 986, 995 (1983); Lewis v. United States, 445
U.S. 55, 66, 100 S. Ct. 915, 921 (1980). The danger is no less
serious for persons with a history of domestic violence.
United States v. Lewitzke, 176 F.3d 1022, 1026 (7th Cir.
1999). And that risk was present here, as Judge Randa
pointed out: Garner had a history of repeatedly battering
women, and it is not at all unreasonable to think that his
possession of firearms might one day result in grave harm.
That pattern of violence also reveals that Garner’s criminal
history is much more serious than the misdemeanor nature
5
Had there been such evidence, the advisory Guidelines range
likely would have been higher. See U.S.S.G. § 2K2.1(c).
14 No. 05-2513
of his prior offenses might otherwise suggest. In short, the
district court reasonably concluded that a sentence within
the Guidelines range was commensurate with the gravity of
Garner’s federal convictions as well as his criminal history.
We accept that Garner’s separation from his children will
impose hardships on them as well as him, although we add
that that is hardly an unusual circumstance. See United
States v. Brisson, 448 F.3d 989, 993 (7th Cir. 2006). Yet,
lesser punishments clearly have not succeeded in altering
Garner’s behavior. As Judge Randa noted, this is hardly the
first occasion on which Garner has professed remorse and
invoked his children in a plea for leniency. Finally, as
discussed above, the district court did not punish Garner for
having hesitated in entering a guilty or no-contest plea in
the prior state prosecution. As we have discussed, the
judge’s point was that Garner’s equivocation over the plea
was consistent with a pattern of not accepting responsibility
for his conduct, a pattern which in part convinced the judge
that a sentence below the Guidelines range was not war-
ranted.
III.
We AFFIRM Garner’s sentence.
No. 05-2513 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-26-06