In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3607
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL T AYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 239—Samuel Der-Yeghiayan, Judge.
A RGUED O CTOBER 30, 2012—D ECIDED N OVEMBER 30, 2012
Before B AUER, F LAUM, and W OOD , Circuit Judges.
F LAUM, Circuit Judge. Over the course of two days in
late November and early December 2009, defendant
Michael Taylor went on a shooting spree in Aurora,
Illinois. He fired his black 9 millimeter Beretta semi-
automatic pistol (the “Beretta”) on residential streets, at
family homes, and at a moving vehicle, all in an ap-
parent attempt to retaliate against rival gang members.
Taylor was arrested and charged with possessing a
2 No. 11-3607
firearm after having previously been convicted of a
felony. Before his jury trial, Taylor filed a motion in limine
to exclude evidence of two other guns that officers had
recovered at the scene of his arrest, and the district court
denied that motion. After his trial, a jury found Taylor
guilty of violating the felon-in-possession statute. Based
in part on the violent circumstances of Taylor’s crime
and his extensive criminal history, the district court
imposed a sentence of 480 months’ imprisonment, which
was nearly thirteen years above his advisory guideline
range. Taylor filed a timely appeal, arguing that the
district court erred in denying his motion in limine, that
the government’s evidence was insufficient to support
the jury’s verdict, and that the sentence imposed by the
district court was substantively unreasonable. For the
reasons set forth below, we affirm.
I. Background
A. The Shootings
The evidence presented at trial established that on
November 28, 2009 Taylor, a convicted felon, was at a
party in Aurora, Illinois with his cousin, Daniel Starks.
During the party, a fight broke out between members of
rival gangs. In the midst of the fight, the host, Derrick
Smith, and his friend, Sean Parker, threatened to kill
Starks. As Starks fled the party, he heard gunshots, which
Taylor later told Starks he had fired out of concern for
Starks’s well-being. Later that evening and into the
early morning hours of November 29, Starks, Starks’ half-
brother Javaris Yankaway, and Taylor’s girlfriend rode
No. 11-3607 3
with Taylor in his white Cadillac to three locations in
Aurora. In response to the events that had transpired at
the party, Taylor fired shots from his Beretta toward
an apartment complex, Smith’s residence, and Parker’s
residence.
On December 1, 2009, Starks, Taylor, and Javaris were
together at Starks’s residence. Roosevelt Yankaway,
who is Starks’s father and Taylor’s uncle, came over to
the house and told the men that on the previous
evening, shots had been fired at his house and that he
thought the shooters were allied with Smith and Parker.
Enraged, Taylor got into his Cadillac with the three men
and began driving around Aurora. Taylor was in the
driver’s seat, Javaris was in the front passenger’s seat,
and Starks and Roosevelt were in the rear seats. Ac-
cording to Starks, both Taylor and Javaris were wearing
gloves. Starks also noted the outline of a gun in
Roosevelt’s right pocket. Starks had previously seen
Roosevelt with a .380 caliber Bersa handgun (the
“Bersa”), and determined that the outline of the gun in
Roosevelt’s pocket was consistent with the size and
shape of the Bersa.
Near the intersection of Fourth Street and Ohio Street
in Aurora, Starks watched from the back seat as Taylor
and Javaris fired shots out of the driver’s window of the
Cadillac in the direction of a passing blue Yukon SUV
that the men had been tracking. According to Starks,
Taylor was firing the Beretta and Javaris was firing a
.357 revolver (the “revolver”). After the shooting, the
four men fled the area in the Cadillac and drove toward
4 No. 11-3607
Roosevelt’s residence. When they arrived in the neigh-
borhood, they parked the car a few houses away and
then approached Roosevelt’s driveway.
B. The Arrest
At the time of the shooting at Fourth Street and Ohio
Street, Joselle Rosales was walking her dog near the
intersection. Immediately after the shooting occurred,
she called the police and reported having observed a
shooting between a white Cadillac and a dark-colored
SUV. She could not see into the Cadillac, but she told
police that she heard multiple gunshots.
The Aurora Police Department (“APD”) dispatched
several officers to the scene to investigate the shooting.
Officer Greg Spayth arrived within minutes of Rosales’s
call. He blocked the streets and collected and reviewed
evidence. During his investigation, Officer Spayth ob-
served two shell casings near the intersection of Ohio
Street and North Avenue, one block north of where the
shooting reportedly occurred. He also observed bullet
holes in two separate residences located near the inter-
section of Ohio Street and North Avenue.
After hearing the dispatch and the information about
the white Cadillac, APD Officers Damien Cantona,
Robert Hillgoth, and David Tellner, who were together
in a single vehicle, traveled to Roosevelt’s residence. On
the previous evening, officers from the APD had re-
sponded to a report of gunshots at Roosevelt’s residence,
and the officers who investigated that shooting had
No. 11-3607 5
observed a light-colored Cadillac parked in the drive-
way next to the house. Based on the shooting at
Roosevelt’s residence the night before and the informa-
tion about the involvement of a white Cadillac, the dis-
patched officers believed that the shooting at Fourth
Street and Ohio Street could have been a retaliatory act.
When the officers arrived at Roosevelt’s residence on
Union Street, they observed three individuals, later
identified by police as Taylor, Javaris, and Roosevelt,
standing near a light-colored Cadillac on the driveway.
Upon seeing the police, the individuals fled. All three
ran across the backyard toward the property south of
Roosevelt’s residence (“Property A”). Having recognized
Roosevelt, Officer Hillgoth yelled, “Roosevelt, stop,
police,” and began to chase the men on foot through the
backyard. Officer Hillgoth continued onto the backyard
and driveway of Property A, where he found Roosevelt
crouched behind a parked vehicle. During Roosevelt’s
arrest, the other two officers observed Taylor and
Javaris walking from the backyard adjacent to the
south end of Property A (“Property B”) and toward a
white Cadillac parked nearby. Officer Cantona ap-
proached the two men and handcuffed them. Starks had
fled from the scene immediately upon seeing police,
heading west away from Union Street and then north.
He successfully escaped, but was later arrested.
After officers detained Taylor, Javaris, and Roosevelt,
investigators who had arrived at the scene performed
gunshot residue (“GSR”) tests on the hands of the three
men. An APD officer also tested the interior of the white
6 No. 11-3607
Cadillac for GSR. Meanwhile, Officer Cantona searched
the area where the chase had occurred and found the
Bersa under the tire of the vehicle near where Roosevelt
had been hiding. He also found the revolver near the
location of Javaris’s arrest. Finally, in the backyard of
a third property, which was immediately adjacent
to the western side of Property B (“Property C”),
Officer Cantona located the Beretta and the Beretta’s
magazine.
Following the arrests, experts analyzed the recovered
evidence. A forensic expert determined that the sample
that had been collected from Taylor’s left hand just
hours after the shooting tested positive for the presence
of GSR and that the tests on Javaris’s and Roosevelt’s
hands were negative. Another forensic expert concluded
that the interior, front and back of the driver’s side of
the white Cadillac also tested positive for GSR. Although
a fingerprint specialist found no latent prints on the
Beretta, spent shell casings recovered from the locations
of the shootings indicated that the Beretta had been
fired. Deputy Kevin Kleveno, who responded to the
scene of a reported shooting at Smith’s residence on
November 29, recovered two spent 9 millimeter shell
casings at nearby Family Dollar Store. Officer Kurt
Thomas, who responded to a different call regarding
shots fired at an apartment complex in Aurora on the
same day recovered four spent shell casings at that loca-
tion. A forensic expert specializing in firearm identifica-
tion concluded that the shell casings recovered from
the two locations on November 29 and from the scene
No. 11-3607 7
of the shooting on December 1 had been shot from
the Beretta.
C. The Trial
Taylor was charged with one count of possession of
a firearm after having previously been convicted of a
felony. Before his jury trial, Taylor filed a motion
in limine to exclude evidence of the revolver and the
Bersa that officers had recovered from the scene of the
chase on December 1. He argued that the government
was offering evidence of the two additional firearms
only to show that he committed other bad acts. The
district court disagreed and stated:
The [Bersa] and the [revolver] are directly relevant to
showing that it was more probable that Taylor, and
not other individuals arrested with him, possessed
the Berretta (sic) because the other individuals
arrested with Taylor possessed [the other firearms].
The fact that the other individuals possessed those
firearms makes it more likely that the third gun, the
Berretta (sic), was possessed by Taylor as charged in
this case. Taylor has not shown that the jury will be
mislead (sic) or confused into believing that he pos-
sessed the [Bersa] and [the revolver]. Nor has Taylor
shown that the [other firearms] should be excluded
under Rule 403 or 404(b).
The district court denied Taylor’s motion and ruled that
the evidence of the Bersa and the revolver could be ad-
mitted at trial.
8 No. 11-3607
During the trial, Starks testified about Taylor’s pur-
chase of the Beretta, about the shootings on November 28,
which lasted into the early hours of November 29, and
about the shooting on December 1. Officers had arrested
Starks sometime after December 1, and at a government
interview in January 2010, Starks initially testified that
he had no knowledge of the events that had occurred
on December 1. Starks later became a cooperating witness,
but at trial, he admitted to additional lies he told the
government and the grand jury. Starks also admitted to
abusing drugs and alcohol, testifying that he smoked
seven marijuana cigars and drank several shots of
cognac each day. He agreed that he would forget “small
things” when he drank and smoke and explained that
the combination of the drugs and alcohol had a
tendency to make him “goofy” and “joke around.” Al-
though Starks admitted to being nervous on the witness
stand, he denied being either high or drunk in court.
The government put several other witnesses on the
stand during the trial to corroborate Starks’s testimony.
The arresting officers testified about Taylor’s flight and
about the recovery of the Bersa, the revolver, and the
Beretta from the scene of the chase. Officer Spayth
testified about the shell casings recovered near the scene
of the shooting at Fourth Street and Ohio Street on Decem-
ber 1, and Officer Thomas and Deputy Kleveno testified
about the shell casings recovered from the store near
Smith’s residence and the apartment complex on Novem-
ber 29. Forensic experts confirmed that the shell casings
recovered from those three locations had originated
from the Beretta, that only Taylor’s left hand tested posi-
No. 11-3607 9
tive for GSR, and that the entire driver’s side of the
white Cadillac tested positive for GSR. Finally, Rosales
testified that she saw shots fired from the white Cadillac
on December 1.
After hearing the evidence, the jury found Taylor
guilty of violating 18 U.S.C. § 922(g)(1), and the district
court denied his motion for acquittal.
D. Sentencing
The district court sentenced Taylor on November 10,
2011. The probation officer recommended a base offense
level of 34 and calculated a total of 23 criminal history
points, putting Taylor in criminal history category VI.
Based on these recommendations, Taylor’s advisory
guideline range was 262 to 327 months. Taylor was also
subject to the Armed Career Criminal Act’s minimum
term of fifteen years’ imprisonment. At sentencing, the
government argued that Taylor’s offense conduct and
criminal history warranted an upward variance from
the guideline range as calculated in the PSR pursuant
to U.S.S.G. §§ 4A1.3(a)(4)(B), 5K2.6, and 5K2.14. The
government emphasized that Taylor had previously
been convicted of several violent felonies, including
aggravated battery, robbery, aggravated domestic bat-
tery, and domestic battery, and that the conduct in this
case was consistent with his pattern of violence. The
district court agreed with the government’s assessment
and after explaining its reasoning and considering
the factors in 18 U.S.C. § 3553(a), the court sentenced
Taylor to 480 months’ imprisonment.
10 No. 11-3607
II. Discussion
A. Admissibility of the Two Additional Guns
Taylor argues that the district court erred in admitting
evidence of the revolver and the Bersa that officers recov-
ered from the scene of Taylor’s arrest and attributed to
Javaris and Roosevelt—neither of whom were charged.
He contends that the evidence of the additional firearms
was inadmissible under Federal Rules of Evidence 404(b)
and 403. We review a district court’s evidentiary rulings
for abuse of discretion, recognizing that a district court
has “wide discretion” in ruling on the admissibility of
evidence. United States v. Boros, 668 F.3d 901, 907 (7th
Cir. 2012) (quoting United States v. Hall, 165 F.3d 1095,
1117 (7th Cir. 1999)). The district court’s ruling will be
reversed “[o]nly where no reasonable person could take
the view adopted by the trial court.” United States v.
Vargas, 552 F.3d 550, 554 (7th Cir. 2008).
Here, the district court concluded that the revolver and
the Bersa were directly relevant to showing that it was
more probable that Taylor, and not the other individuals
arrested with him, possessed the Beretta. The court con-
cluded that if Javaris and Roosevelt possessed their
own guns, it would be more likely that Taylor possessed
the third gun. The court also determined that Taylor
had not shown that the evidence would mislead the
jury in any way.
Taylor argues that the jury could have mistakenly
believed that the guns belonged to him, rather than to
Javaris and Roosevelt, and that the evidence was there-
fore inadmissible propensity evidence. Rule 404(b)
No. 11-3607 11
states that “[e]vidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b). Here,
the government did not offer the evidence at issue in
an attempt to show that Taylor possessed the other two
guns, thereby making it more likely that he possessed the
gun in question. Instead, the government used the evi-
dence to show that two of the other people with Taylor
possessed firearms of their own and that it was therefore
less likely that someone else with Taylor possessed the
Beretta. The language of Rule 404(b) does not apply to
crimes, wrongs, or acts of another person. Thus,
the only question is whether the evidence was unduly
prejudicial under Rule 403.
Federal Rule of Evidence 403 allows the district court
to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or need-
lessly presenting cumulative evidence.” Fed. R. Evid. 403.
This rule requires the district court to balance the proba-
tive value of the evidence at issue against any potential
harm its admission might cause. United States v. McKibbins,
656 F.3d 707, 712 (7th Cir. 2011). Here, the evidence
regarding the recovery of the revolver and the Bersa
was probative of Taylor’s guilt in two ways. First, as
the district court concluded, the fact that the other indi-
viduals arrested with Taylor possessed guns of their
own makes it less likely that those individuals
possessed the Beretta and more likely that the Beretta
12 No. 11-3607
was in Taylor’s possession. Second, the evidence of the
other guns corroborated Starks’s eyewitness testimony
regarding the December 1 shooting. At trial, Starks
testified that he had observed Taylor in possession of
the Beretta on various occasions, including during the
December 1 shooting that occurred just prior to Taylor’s
arrest. Starks also testified that Javaris fired the re-
volver and that Roosevelt possessed the Bersa during
the December 1 shooting. The fact that Officer Cantona
recovered those guns in close proximity to their alleged
possessors supports Starks’s testimony.
Taylor argues that even if the evidence is relevant
it should have nonetheless been excluded because it
revealed that officers recovered guns from other indi-
viduals closely related to him. He does not develop
this argument and does not explain why the purported
prejudicial effect would outweigh the probative value
of the evidence. Importantly, the question under Rule 403
is not whether the evidence of the two additional
firearms would have been prejudicial to Taylor, but
rather whether it would have been unfairly prejudicial.
As noted above, the evidence of the guns was highly
probative of the fact that Taylor, and not one of the
other two men, possessed the Beretta, and the evidence
also served to corroborate Starks’s eyewitness testi-
mony. Thus, even if the evidence suggested that Taylor
associated with individuals who possessed guns, any
potential prejudice was outweighed by the guns’
probative value. The district court did not abuse its
discretion when it denied Taylor’s motion in limine.
No. 11-3607 13
B. Sufficiency of the Evidence at Trial
Next, Taylor argues that the government’s evidence
was insufficient to sustain his felon-in-possession con-
viction. In reviewing a conviction for the sufficiency of
the evidence, we consider the evidence in the light most
favorable to the government. United States v. Gorman,
613 F.3d 711, 715 (7th Cir. 2010). Because it is the jury’s
exclusive function to evaluate the credibility of witnesses
and to draw reasonable inferences from the evidence,
we will not weigh the evidence on our own or “sec-
ond-guess the jury’s credibility determinations.” United
States v. Carrillo, 435 F.3d 767, 775 (7th Cir. 2006) (quoting
United States v. Gardner, 238 F.3d 878, 879 (7th Cir. 2001); see
also United States v. Theodosopoulos, 48 F.3d 1438, 1444
(7th Cir. 1995). Thus, “a jury’s verdict will be upheld if
any ‘rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ”
United States v. Melendes, 401 F.3d 851, 854 (7th Cir. 2005)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
To sustain a conviction under 18 U.S.C. § 922(g)(1), the
government must prove (1) that the defendant had a
prior felony conviction; (2) that the defendant possessed
a firearm; and (3) that the firearm traveled in or
affected interstate commerce. United States v. Hodges, 315
F.3d 794, 799 (7th Cir. 2003). Taylor does not dispute
the fact of his previous felony conviction or that the
firearm in question traveled in interstate commerce, but
he contends that the government did not provide
sufficient evidence for the jury to conclude that he
had possession of the firearm beyond a reasonable doubt.
14 No. 11-3607
Here, the government presented direct evidence of
Taylor’s possession of the Beretta. Starks testified that
Taylor fired shots from the Beretta in the direction of a
blue Yukon. Several forensic experts corroborated
Starks’s testimony by explaining that Taylor was the
only person arrested to have GSR on either of his hands,
that the inside driver’s side of the Cadillac tested positive
for GSR, and that the casings recovered from various
locations where Starks testified he had observed Taylor
firing the Beretta had come from the Beretta. The
arresting officers’ testimony about Taylor’s flight from
the police and the location of the Beretta further corrobo-
rated Starks.
Taylor argues that the government’s case rests entirely
on Starks’s testimony and that Starks’s “mass consump-
tion of cannabis and alcohol would make any recall of
the detail he provides completely impossible.” But the
jury in this case had the opportunity to observe Starks’s
“verbal and nonverbal behavior” and account for any
“confused or nervous speech patterns.” See United States
v. Eddy, 8 F.3d 577, 582-83 (7th Cir. 1993) (internal quota-
tion marks omitted) (contrasting the trier of fact’s ability
to make a credibility determination with the appellate
court’s ability, which is based solely on the “cold pages
of an appellate record”). To find a witness’s testimony
to be incredible as a matter of law, it must have been
“physically impossible for the witness to have observed
that which he claims occurred, or impossible under the
laws of nature for the occurrence to have taken place at
all.” United States v. Bailey, 510 F.3d 726, 733 (7th Cir. 2007)
(internal quotation marks omitted). Even if Starks had
No. 11-3607 15
been under the influence of drugs and alcohol on the
evening of December 1, he could still have observed the
events as he testified they occurred. And although it is
possible that Starks’s excessive use of marijuana and
alcohol has had an effect on his cognition and memory,
Taylor presented evidence on this point, allowing “the
jury to evaluate the credibility of the witness[ ], including
any cloudiness brought on by [his] drug use.” Id. In
this case, the evidence viewed in the light most
favorable to the government is sufficient to support a
finding of possession for the purpose of a conviction
under 18 U.S.C. § 922(g)(1).
C. Substantive Reasonableness of the Sentence
Taylor’s final argument is that the 480-month sentence
imposed by the district court—a sentence which is almost
thirteen years beyond the high end of his guideline
range—is substantively unreasonable. We review a
district court’s sentencing decision for reasonableness
under an abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 46 (2007). “We will uphold an
above-guidelines sentence so long as the district court
offered an adequate statement of its reasons, consistent
with 18 U.S.C. § 3553(a), for imposing such a sentence.”
United States v. Abebe, 651 F.3d 653, 657 (7th Cir. 2011)
(quoting United States v. Aldridge, 642 F.3d 537, 544 (7th
Cir. 2011)). Sentences outside of the guideline range
are not presumptively unreasonable, id., but a major
departure from the guideline range must be supported
by a more significant justification than one supporting
a minor departure. Gall, 552 U.S. at 50.
16 No. 11-3607
During Taylor’s sentencing hearing, the district court
provided a comprehensive explanation of its decision to
impose a sentence above Taylor’s guideline range. It
noted its consideration of all of the factors in 18 U.S.C.
§ 3553(a) and discussed Taylor’s troubled childhood
and addiction to illegal drugs and alcohol. Then, it ad-
dressed the government’s motion for an upward vari-
ance, in which the government argued that the court
should consider Taylor’s offense level to be 37 rather
than 34 based on the severity of his conduct and the
guidelines’ underrepresentation of his criminal history.
The court accepted the government’s argument and cited
three sections of the guidelines in support of the upward
variance. First, the court explained that § 4A1.3 of the
guidelines provides for an upward variance if “the de-
fendant’s criminal history category substantially under-
represents the seriousness of the defendant’s criminal
history.” U.S.S.G. § 4A1.3. The court noted that in this case,
Taylor’s criminal history points added to nearly double
the number needed to qualify for the highest criminal
history category of VI and that his criminal history in-
cluded several violent crimes. Moreover, the court ex-
plained that some of Taylor’s past convictions were not
assigned criminal history points because they were
outside of the applicable time frame. Next, the court
addressed § 5K2.6, which provides that the discharge of
a firearm during the commission of a crime “might
warrant a substantial sentence increase.” U.S.S.G. § 5K2.6.
The court concluded that the government had shown
during the course of the trial that Taylor discharged his
firearm in the direction of individuals’ homes and moving
vehicles. Finally, the court discussed § 5K2.14, which
No. 11-3607 17
states that a court may apply a sentence above the guide-
lines range “[i]f national security, public health, or
safety was significantly endangered,” because of the
defendant’s actions. U.S.S.G. § 5K2.14. The court
explained that Taylor had engaged in a shooting spree
in public areas in an attempt to retaliate against other
gang members and that by doing so, he endangered
public safety.
The district court discussed at length the violent
nature of Taylor’s offense as well as his extensive
criminal history, and it explained the ways in which
the guideline range did not adequately reflect the serious-
ness of the offense. The district court classified Taylor’s
conduct as “egregious” and emphasized the need to
deter gang members and other individuals from pos-
sessing guns illegally. A sentence that requires a
defendant to serve 153 months above the guideline
range for a felon-in-possession conviction is undoubtedly
a harsh sentence. But we are not presented with a case
in which the court’s rationale for the above-guidelines
sentence “provides little more than what is implicit in
the instant offense.” See United States v. Bradley, 675
F.3d 1021, 1025 (7th Cir. 2012) (concluding that the
district judge did not provide “sufficient justification” for
imposing a sentence 169 months above the guidelines
range). Taylor did not just possess a firearm. He went on
a shooting spree and fired several shots at multiple resi-
dences and at a vehicle in an attempt to retaliate against
rival gang members. The district judge concluded that
Taylor had shown complete disrespect for the law by
collecting nearly double the maximum number of
criminal history points that are considered under the
18 No. 11-3607
guidelines. A district court must provide a significant
justification to support a major departure from the guide-
lines, but the justification need not be extraordinary.
United States v. Brown, 610 F.3d 395, 398 (7th Cir. 2010)
(internal quotation marks omitted). The district court’s
explanation of its sentencing determination reflects a
serious consideration of the factors in § 3553(a), and
under an abuse-of-discretion standard, we must give
deference to the district court’s determination that the
factors justify a 480-month term of imprisonment in
this case.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s evidentiary ruling, AFFIRM the jury’s verdict, and
A FFIRM the sentence imposed by the district court.
11-30-12