NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 16, 2008
Decided February 12, 2009
Before
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐2264
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Indiana, South Bend Division.
v.
No. 3:07‐CR‐00111(02)RM
BRANDON L. TAYLOR,
Defendant‐Appellant. Robert L. Miller, Jr.,
Chief Judge.
ORDER
Brandon Taylor was tried before a jury on four counts of possessing guns and
ammunition and two counts of carjacking. On the second day of the two‐day trial, the
carjacking counts were dismissed on the government’s motion. Later that day, the jury
found Taylor guilty of the gun and ammunition offenses. At sentencing the district
court determined by a preponderance of the evidence that Taylor had, in fact,
committed the carjacking offense, and so it applied a cross‐reference provision in the
firearm‐possession guideline to sentence Taylor using the robbery guideline. The
No. 08‐2264 Page 2
district court then went above the recommended range of 188 to 235 months’
imprisonment and sentenced Taylor to 240 months—half the statutory maximum.
Taylor objects to using the robbery guideline at sentencing because the carjacking
charges were not proven to a jury beyond a reasonable doubt.
Taylor and a friend, Ernest Glasper, each had a gun and were driving around
smoking marijuana in a Nissan accompanied by two teenagers. Taylor had also taken
ecstasy earlier that day. The four called Dion Winston to get more marijuana, and when
Winston drove up, Glasper and Taylor each pointed a gun at his head and ordered him
out of the car. Then Glasper hit Winston in the back of the head with his gun. Winston,
his head bleeding, fell to the ground, and Glasper drove off in Winston’s car with the
Nissan following behind. Winston called the police to report the crime and later picked
Taylor and Glasper out of a lineup.
Meanwhile, Glasper ditched Winston’s car and rejoined the others. They
switched cars and became embroiled in a second incident involving a shootout.
Taylor, Glasper, and the two teenagers switched back to the Nissan and went to a
Wal‐Mart store in South Bend, Indiana, to get more ammunition. There, a South Bend
police officer recognized Taylor as a suspect in the earlier shooting. He followed Taylor
and his companions when they drove away. The officer radioed for help, and when the
police attempted to stop the car, it sped away, and a high‐speed chase ensued through a
construction zone and onto the lawns of several houses. During the chase, a bag was
thrown out of the Nissan’s passenger window. Police later recovered the bag and
discovered a .45 handgun, a .380 handgun, and a box of .45 caliber ammunition. Soon
the car crashed, and the four occupants fled on foot. The police gave chase and caught
them. Police found two live .45 caliber rounds and a little over 7 grams of marijuana in
the Nissan.
Several incidents occurred during Taylor’s trial that affected his sentence. First,
Taylor repeatedly threatened Sergeant Jennifer Koczan, a St. Joseph County Jail official
who had authenticated a picture of the line‐up room at trial. He said, for example,
“When I see you, you gonna get yours, what goes around comes around you dirty
bitch.” He also warned that he would shoot her if he saw her on the street and
threatened to put a $5,000 bounty out on her. Also, Taylor regularly threatened to kill
and put hits on the five‐person team assigned to move him from the jail to the
courtroom and back.
No. 08‐2264 Page 3
At the jail when the trial ended, Taylor punched a U.S. Marshal and a Sheriff’s
Deputy who were removing his handcuffs. Others came to help, but Taylor continued
to resist violently, ultimately injuring three guards.
The PSR sentencing recommendation began with U.S.S.G. § 2K2.1, the guideline
for unlawful possession of a firearm or ammunition, but then recommended applying a
cross‐reference in § 2K2.1(c)(1)(A). Subsection (c)(1)(A) instructs courts that if “the
defendant used or possessed any firearm or ammunition in connection with the
commission . . . of another offense” to use the guideline for the other offense if the
resulting offense level is higher than the offense level for firearm possession.1 The
cross‐reference here led to the robbery guideline at § 2B3.1 because Taylor used the gun
and ammunition in connection with the carjacking.
Taylor objected to using the cross‐reference and argued that the court should
instead account for the carjacking through U.S.S.G. § 2K2.1(b)(6), which instructs
sentencing judges to increase the firearm offense level by four if the firearm is possessed
in connection with another felony. The difference is significant because if the district
court had applied only the firearm guideline, the offense level would have been 18, but
under the robbery guideline the offense level was 30. The court held that the guidelines
mandated it to use the higher offense level, and so it sentenced Taylor using the robbery
guideline. See U.S.S.G. § 2K2.1(c)(1)(A). The court then increased the offense level by
two after determining that Taylor’s threats to Sgt. Koczan were an attempt to obstruct
justice under § 3C1.1.
Taylor’s twelve criminal history points placed him in criminal history category V,
resulting in a guidelines range of 188 to 235 months. After considering the 18 U.S.C.
§ 3553(a) factors, the district court imposed a 240‐month sentence, which was above the
guideline range, but half the maximum (10 years x 4) of 480 months.
When determining that the guidelines range was insufficient, the court first
found in mitigation that the guidelines range did not reflect that the carjacking charges
were dismissed, but then turned its attention to factors aggravating Taylor’s offense.
The court explained that the circumstances of Taylor’s crime were more serious than the
usual felon or drug user in possession of a gun and that Taylor’s prior felony—a
1
The cross-reference directs the court to § 2X1.1, conspiracies, attempts, and
solicitations, which in turn directs the court to the guideline for the substantive offense, in this
case, robbery, § 2B3.1.
No. 08‐2264 Page 4
carjacking followed by a high‐speed flight from police—was uncomfortably similar to
his current offense. The court further recognized that although the guidelines range
adequately took into account the carjacking, they did not adequately reflect that he
committed the crime while taking ecstasy and marijuana or that he got into a shootout.
Finally, the court pointed out that the guidelines range did not reflect the unprovoked
attack on jail officials or the threats he made to officers besides Sgt. Koczan. The district
court concluded that there was a “much, much greater than usual need for the sentence
to protect the public from further crimes by” Taylor, and so it imposed a heavy term of
imprisonment.
Taylor initially argues that the district court violated his Sixth Amendment right
to trial by jury by relying on conduct underlying charges that were dismissed during
trial. He acknowledges that current precedent undercuts his argument, but believes
that, after the decisions in United States v. Gall, 128 S. Ct. 586 (2007) (requiring appellate
courts to review outside‐guidelines sentences for abuse of discretion), Kimbrough v.
United States, 128 S. Ct. 558 (2007) (allowing district courts discretion under Booker to
disregard the 100‐to‐one ratio for crack vs. powder cocaine sentences), and Cunningham
v. California, 549 U.S. 270 (2007) (invalidating California’s determinate sentencing law
under the Sixth Amendment because it required a statutory maximum to be increased
based on facts found by the judge by a preponderance of the evidence, instead of by the
jury beyond a reasonable doubt), the Supreme Court may be prepared to revisit United
States v. Watts, 519 U.S. 148 (1997) (per curiam), which held that a court can use
acquitted conduct during sentencing if the conduct is proved by a preponderance of the
evidence.
Taylor does not really develop the argument in his main brief, and the
government correctly points out that United States v. Price, 418 F.3d 771, 788 (7th Cir.
2005), held that Watts is still the law after Booker. We see no reason here to revisit the
use of acquitted or dismissed conduct at sentencing. See United States v. White, No. 05‐
6596 (6th Cir. Dec. 24, 2008) (en banc) (reaffirming continued validity of Watts and use
of acquitted conduct at sentencing); see also United States v. Thompson, 523 F.3d 806, 809
(7th Cir. 2008) (upholding sentence of 190 years’ imprisonment based on cross‐reference
for uncharged murder—that of defendant’s own mother—after he was convicted of
wire fraud, use of fire to commit felony, bankruptcy fraud, and money laundering).
In his reply brief, however, Taylor refines his argument. According to him the
way the court used the dismissed conduct violated his Sixth Amendment rights. Taylor
maintains that the district court should have accounted for the carjacking by increasing
No. 08‐2264 Page 5
the firearm offense level under U.S.S.G. § 2K2.1(b)(6), but that by applying the cross‐
reference and using the robbery guideline the district court “sentenced Mr. Taylor as if
he was [sic] found guilty, beyond a reasonable doubt, of carjacking.”
In his opening brief, Taylor primarily relies on Justice Scalia’s concurrence in
Gall:
[T]he Court has not foreclosed as‐applied constitutional challenges to sentences.
The door therefore remains open for a defendant to demonstrate that his
sentence, whether inside or outside the advisory Guidelines range, would not
have been upheld but for the existence of a fact found by the sentencing judge
and not by the jury.
Gall, 128 S. Ct. at 602‐03 (Scalia, J., concurring). Taylor bolsters his argument in his
reply brief with United States v. Horne, 474 F.3d 1004 (7th Cir. 2007), which upheld using
acquitted conduct at sentencing—but in dicta warned, “[t]his is not a case in which a
jury convicts a defendant of one very minor crime and acquits him of the serious crimes
with which he was charged, and the judge then bases the sentence almost entirely on
those crimes.” Id. at 1006‐07.
Taylor argues that his is such a case: he was convicted of unlawful possession of
a gun and ammunition but sentenced based on the more serious carjacking charges.
Horne, however, forecloses Taylor’s argument by acknowledging that the district court
retains discretion to sentence outside a guidelines range when the court believes that it
would not promote respect for the law to do otherwise. Horne, 474 F.3d at 1007; see also
United States v. Reuter, 463 F.3d 792 (7th Cir. 2006).
In this case, the district court looked at the § 3553(a) factors and decided that a
within‐range sentence did not adequately reflect the aggravating aspects of the crime,
Taylor’s behavior at the jail during the trial, or the extraordinary need to protect the
public from Taylor. Given the district court’s reasons for imposing a sentence above the
recommended range, Taylor cannot say that “his sentence . . . would not have been
upheld but for” the district court’s finding that he committed carjacking. Gall, 128 S. Ct.
at 602‐03 (Scalia, J., concurring).
For these reasons, the judgment of the district court is AFFIRMED.