In the
United States Court of Appeals
For the Seventh Circuit
No. 15-3203
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES M. KRUGER,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:13-cr-00113-wmc-1— William M. Conley, Chief Judge.
ARGUED SEPTEMBER 16, 2016 — DECIDED OCTOBER 5, 2016
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Defendant-appellant James M.
Kruger was arrested in 2013 after a day-long crime spree in
southwestern Wisconsin during which he robbed his uncle,
kidnapped a 69 year-old farmer, stole multiple vehicles, and
drove over rural roads at speeds exceeding 100 miles per hour
in an ultimately unsuccessful effort to elude capture by the
authorities. He pleaded guilty to being a felon in possession of
2 No. 15-3203
firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1),
and the district court ordered him to serve a prison term of 180
months. Kruger appeals the sentence, contending that the
district court committed plain error in applying the Sentencing
Guidelines when it found that he “otherwise used” a firearm
to commit a kidnapping, see U.S.S.G. §§ 1B1.1, comment.
(n.1(I)) & 2A4.1(b)(3), comment. (n.2), and assigned several
points to his criminal history. We find no plain error in the
enhancement for use of a firearm, and because any potential
error in the calculation of his criminal history did not affect his
advisory Guidelines sentencing range, we do not reach that
issue.
I.
Kruger has led a troubled life. He was born into a broken,
dysfunctional family and placed in foster care at the age of 12.
He began drinking at age 8 and smoking marijuana and crack
cocaine at age 15. Psychiatric problems emerged during his
adolescence. He was homeless from the ages of 18 to 25. He has
a lengthy criminal history dating back to age 17 that includes
multiple prior felony convictions. As a result of those convic-
tions, during the time period relevant to this case, Kruger
could not legally possess a firearm or ammunition in interstate
commerce. § 922(g)(1).
On June 6, 2013, Kruger arranged to purchase a .22 caliber
rifle and a 1,600-round canister of .22 caliber ammunition at a
Gander Mountain store in Deforest, Wisconsin. Bonnie Forseth
purchased these items at Kruger’s behest; he told her that he
was going to give the rifle to his father as a gift. Following the
purchase, she placed the rifle in his truck and did not see it
No. 15-3203 3
again. Kruger’s father would later tell investigators that Kruger
did, in fact, give the gun to him. But at one or more points
during the period of August 14 to August 28, 2013, both the
rifle and the ammunition were in Kruger’s possession.
On August 28, individuals who shared a residence with
Kruger in Madison, Wisconsin spoke to a police detective and
advised him that Kruger was selling cocaine from the residence
and had threatened one of them with a rifle on the prior
evening. Kruger reportedly was using both cocaine and
methamphetamine to deal with his mental difficulties, and his
behavior had become increasingly violent. His roommates
indicated that they had first seen the rifle about two weeks
earlier. They showed the detective an empty box for the rifle,
which contained the June purchase receipt from Gander
Mountain. They also advised the detective that the rifle itself
was located behind the seat in Kruger’s truck (one of them had
placed it there at Kruger’s instruction). The truck was located
and impounded later that same day. Two days later, the truck
was searched pursuant to a warrant. Inside was documentation
confirming that Kruger was the registered owner of the truck.
Also found was the rifle along with the 1,600 rounds of
ammunition and another receipt from Gander Mountain.
Kruger was arrested on an unrelated charge on September 3,
but he was evidently released on a signature bond by mistake.
At approximately 6:30 on the morning on September 10,
2013, Kruger arrived at the home of his uncle, Keith “Dale”
Kruger (“Dale”). Kruger was agitated and behaving irratio-
4 No. 15-3203
nally.1 He pointed a gun to Dale’s head and threatened to kill
Dale and other family members. When Dale pushed the gun
away, the two struggled and Kruger grabbed his uncle’s neck
and began to choke him, repeating the threat to kill him.
Telling Dale that he needed money, Kruger demanded that he
open a safe in the basement. Eventually, Dale was able to open
the safe and Kruger took a small amount of money from
within. Kruger also broke into a gun cabinet and took a rifle,
semi-automatic handgun, and a shotgun. Dale eventually
escaped to a neighbor’s house and called the police. Kruger, in
the meantime, fled the scene in his car.
Kruger drove to a farm in rural Cassville, Wisconsin,
owned by Walter and Linda Reidl. Linda saw the car arrive on
the property and pull into or behind a shed. As she
approached the shed, Kruger pointed a handgun at her. She
told him to put the gun down. Walter arrived on the scene at
that moment from elsewhere on the property driving a truck
and cattle trailer and Linda flagged him down. When Walter
exited the truck, Kruger pointed the gun at his own head. The
Reidls engaged Kruger in conversation about religion, during
which Kruger advised them that he was a disciple of God. Yet,
Kruger threatened to kill both the Reidls and himself. Walter
had been planning to take a cow he had loaded onto the trailer
to Bloomington, Wisconsin, for slaughter. Hoping to protect
Linda, he suggested that he leave the farm with Kruger in the
truck and drop him in Bloomington; Linda would remain
1
Hours earlier, Kruger had been spotted driving in the wrong direction
on a one-way street in Platteville, Wisconsin. A police officer made an effort
to pull him over, but Kruger sped away without stopping.
No. 15-3203 5
behind. Kruger agreed. He changed his clothes and took a cap
and a pair of sunglasses from Walter, and Linda retrieved two
cans of soda from the house for him. Kruger then ordered
Walter into the passenger seat of the Reidls’ truck, placed a
shotgun in the cab, took a seat behind the wheel, placed the
handgun he had previously pointed at Linda in his lap, and
departed the farm with the cow in tow. Kruger told Walter that
he also had explosives with him.
Kruger took Walter on a meandering two-hour journey to
Dodgeville, Wisconsin, never stopping in Bloomington. Twice
during the journey, Kruger put a crushed pill into one of the
soda cans, lit the pill, and inhaled the smoke, telling Walter
that it calmed him. At one point, Walter asked Kruger to let
him go, but Kruger refused. Eventually, when the two reached
Dodgeville, Walter persuaded Kruger to let him telephone his
wife and tell her he was alright. Kruger gave Walter some
money and directed him to see if he could buy some more soda
from a taxidermy shop. Walter walked into Rickey’s Ridge
Taxidermy Studio, locked the front door behind him, told the
proprietor that he was being held hostage, and asked him to
call the police.
When Kruger heard sirens approaching, he sped away from
the scene in the truck. (The trailer and cow had been ditched
earlier.) Multiple squad cars gave chase, but Kruger initially
managed to shake their pursuit. By this time, an advisory
bulletin had been issued, local schools had been locked down,
and area residents had been warned to stay in their homes;
sheriff’s deputies from four different counties and a state patrol
aircraft were involved in the effort to capture Kruger. Kruger
stopped at two other residences where he, among other things,
6 No. 15-3203
confronted another resident with a gun, trimmed off his
goatee, and stole another vehicle. He was ultimately captured
following another high-speed pursuit when police placed
“spike strips” in his path and the tires of the stolen car were
punctured, causing it to overturn. He was arrested and
charged with multiple state offenses, but his use of firearms
promptly brought him to the attention of the federal authori-
ties as well.
In a superseding indictment, a federal grand jury charged
Kruger with three counts of being a felon-in-possession in
violation 922(g)(1). Count One was premised on Kruger’s
possession of the .22-caliber shotgun and the ammunition that
Bonnie Forseth had purchased for him from Gander Mountain
at his behest on June 6, 2013. Count Two charged that Kruger
had possessed the same shotgun and ammunition between
August 14 and August 28, 2013. Count Three arose from the
lengthy crime spree of September 10, 2013, and charged him
with the possession of three separate firearms during the
course of that day.
Kruger pleaded guilty to Counts Two and Three pursuant
to a written plea agreement. At the change of plea hearing,
Kruger professed some uncertainty as to when exactly, during
the two-week period in August 2013 referenced in Count Two
of the indictment, he had possessed the .22-caliber rifle and
ammunition he had purportedly purchased for his father. The
government’s proffer focused on the end of that period, when
police learned from Kruger’s housemates that he was in
possession of the rifle and impounded the truck in which he
had stored it. When the court questioned Kruger about Count
Two, he admitted that he was in constructive possession of the
No. 15-3203 7
.22-caliber ammunition, “probably multiple times” between
August 14 and August 28 but could not recall precisely when.
R. 146 at 22. He also acknowledged that, at different times
during that same period, he had also possessed (or construc-
tively possessed) the rifle; but, again, he could not specify
when. R. 146 at 21, 22-23.
At sentencing, Kruger’s offense level, criminal history, and
advisory sentencing range were calculated using the Novem-
ber 2014 Sentencing Guidelines. Counts II and III were
grouped together for that purpose. Because Kruger had
possessed one or more of the firearms in connection with other
felony offenses (including the robbery of his uncle and the
kidnapping of Walter Reidl), his offense level was ultimately
calculated using the kidnapping guideline, which produced the
highest offense level. See U.S.S.G. §§ 2K2.1(c)(1); 2X1.1; 2A4.1.
Among other enhancements, the district court imposed a two-
level enhancement for use of a dangerous weapon in conjunc-
tion with the kidnapping. § 2A4.1(b)(3). The district court
specifically found that “the defendant used a dangerous
weapon, here a nine millimeter handgun[,] to force [Walter
Reidl] to remain in the truck while the defendant drove.”
R. 140 at 6; see also R. 138 at 4. Kruger was assigned a total of
six criminal history points, which placed him into a criminal
history category of III. Two points were imposed pursuant to
section 4A1.1(d) on the basis that Kruger was still serving
probation on a state disorderly conduct charge when he
engaged in the offense conduct underlying the indictment in
this case. R. 127 ¶ 87; R. 138 at 4; R. 140 at 4-5. Kruger was also
assessed one criminal history point for the state offense of
operating a motor vehicle under the influence of a controlled
8 No. 15-3203
substance on September 10, 2013. R. 127 ¶ 84. With an adjusted
offense level of 38, the Category III criminal history produced
a sentencing range of 292 to 365 months. However, because the
statutory maximum term was twenty years (ten years for each
of the two counts to which Kruger had pleaded guilty), a term
of 240 months became the Guidelines range. See U.S.S.G.
§§ 5G1.1(a), 5G1.2(d).
After hearing from counsel for both parties and from
Kruger himself, the district court ordered Kruger to serve a
below-Guidelines sentence of 180 months. Among other
mitigating factors, the court took note of Kruger’s difficult
childhood, his polysubstance drug abuse, and his history of
mental health problems. On the other hand, the court observed
that Kruger’s psychiatric problems were not as bad as he made
them out to be, that Kruger did not comply with his prescribed
regime of medication, and instead resorted to narcotics in an
ill-advised effort to self-medicate. The court also noted that
Kruger’s offenses were serious, that his criminal behavior
reflected a pattern of escalation, and that he was a dangerous
individual from whom the public needed to be protected. That
said, the court was not convinced that a sentence as long as
that called for by the Guidelines was necessary to achieve
specific deterrence.
II.
Kruger’s appeal challenges the calculation of his advisory
sentencing range under the Guidelines. It is the court’s first
task at sentencing to properly calculate that range. E.g., Molina-
Martinez v. United States, 136 S. Ct. 1338, 1342 (2016). Although
the Guidelines no longer bind the court after United States v.
No. 15-3203 9
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the court nonetheless
“must consult those Guidelines and take them into account
when sentencing.” Molina-Martinez, 136 S. Ct. at 1342 (quoting
Booker, 543 U.S. at 264, 125 S. Ct. at 767). The failure to properly
apply the Guidelines and to correctly calculate a defendant’s
sentencing range thus amounts to a “significant procedural
error,” id. at 1346 (quoting Gall v. United States, 552 U.S. 38, 51,
128 S. Ct. 586, 597 (2007)), because the Guidelines continue to
serve as “‘the framework for sentencing’ and ‘anchor … the
district court’s discretion,’” id. at 1345 (quoting Peugh v. United
States, 133 S. Ct. 2072, 2083, 2087 (2013)).
Kruger’s first contention focuses on the two-point increase
in his offense level pursuant to Guidelines section 2A4.1(b)(3).
Kruger contends that it was error for the court to find that he
“otherwise used” a dangerous weapon in the course of
kidnapping Walter Reidl, see U.S.S.G. § 1B1.1, comment.
(n.1(I)); in Kruger’s view, he at most brandished a firearm.
Second, Kruger contends that three criminal history points
were assigned to him in error and that his criminal history
category should have been II rather than III. These issues were
not raised below, and consequently our review is limited to a
search for plain error. Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 1776 (1993). We
conclude that the district court did not plainly err in finding
that Kruger “otherwise used” a firearm for purposes of the
kidnapping guideline. And because any error with respect to
the calculation of Kruger’s criminal history would not have
affected his advisory sentencing range, we need not decide
whether the district court committed plain error in assigning
the particular criminal history points that Kruger challenges.
10 No. 15-3203
We begin with the enhancement for use of a weapon in
connection with the kidnapping. In order to show that the
district court committed plain error which entitles him to relief,
Kruger bears the burden of showing that the district court
(1) committed error; (2) that is plain, in the sense that it is
obvious in retrospect, Olano, 507 U.S. at 734, 113 S. Ct. at 1777;
United States v. Hamad, 809 F.3d 898, 904 (7th Cir. 2016); and
(3) that the error affects his substantial rights, in the sense that
it made a difference to the outcome (in this case, his sentence),
Olano, 507 U.S. at 734, 113 S. Ct. 1777-78; Hamad, 809 F.3d at
904. If he satisfies those criteria, then we as the reviewing court
must consider whether the error “seriously affects the fairness,
integrity, or public reputation of judicial proceedings,” such
that it warrants the exercise of our discretion to correct the
error. Olano, 507 U.S. at 732, 113 S. Ct. at 1776 (internal bracket-
ing, quotation marks, and citations omitted); see also United
States v. Ramirez, 182 F.3d 544, 547 (7th Cir. 1999). See also
Molina-Martinez, 136 S. Ct. at 1343.
Guidelines section 2A4.1(b)(3) calls for a two-point en-
hancement if a dangerous weapon was used in connection with
a kidnapping. Application note 2 to this guideline states, “‘A
dangerous weapon was used’ means that a firearm was
discharged, or a ‘firearm’ or ‘dangerous weapon’ was ‘other-
wise used’ (as defined in the Commentary to § 1B1.1 (Applica-
tion Instructions)).” There is a parallel provision in the robbery
guideline that likewise references section 1B1.1. See U.S.S.G.
§ 2B3.1(b)(2)(D) & comment. (n.1). Application note 1(I) to
section 1B1.1 in turn instructs that “otherwise used” in con-
junction with a firearm “means that the conduct did not
amount to the discharge of a firearm but was more than
No. 15-3203 11
brandishing, displaying, or possessing a firearm or other
dangerous weapon.” The term “brandished” is in turn defined
to “mean[ ] that all or part of the weapon was displayed, or the
presence of the weapon was otherwise made known to another
person, in order to intimidate that person, regardless of
whether the weapon was directly visible to that person.”
§ 1B1.1, comment. (n.1(C)).2 As we noted above, when Kruger
kidnapped Walter Reidl, he took both a shotgun and handgun
with him in the truck, placing the handgun in his lap. Kruger
argues that the placement of the gun in his lap at worst
amounted to brandishing of the firearm (and possibly only
displaying) but did not rise to the level of “use” of the firearm.
The district court committed no obvious error in finding
that Kruger otherwise used a firearm in kidnapping Walter. As
we have previously acknowledged, the language of the
relevant guidelines and the accompanying commentary
provides no clear guidance on what will distinguish mere
brandishing of a weapon from other use, short of actual
discharge of the weapon, that will qualify for the enhancement.
United States v. Eubanks, 593 F.3d 645, 650 (7th Cir. 2010) (citing
United States v. Hernandez, 106 F.3d 737, 741 (7th Cir. 1997)).
Our cases have looked for conduct that “create[s] a personal-
ized threat of harm,”Eubanks, 593 F.3d at 651 (quoting United
States v. Warren, 279 F.3d 561, 563 (7th Cir. 2002)) (bracketing
ours); see also United States v. Taylor, 135 F.3d 478, 483 (7th Cir.
1998), as when the defendant levels a gun at a specific individ-
2
The definition concludes with the observation that “although the
dangerous weapon does not have to be directly visible, the weapon must
be present.” § 1B1.1, comment. (n.1(C)).
12 No. 15-3203
ual and in some way conveys a threat, explicit or implicit, that
he will inflict harm on that person if she does not cooperate
with him, Hernandez, 106 F.3d at 741. See Eubanks, 593 F.3d at
651 (defendant pointed gun at specific jewelry store employee
and forced employee to ground); Warren, 279 F.3d at 563
(defendant grabbed bank teller by arm, put gun in her back,
ordered her into vault room, and told her he did not wish to
hurt her); Taylor, 135 F.3d at 483 (defendant poked bank teller
in back with gun after he told her to open safe and she hesi-
tated); Hernandez, 106 F.3d at 741 (defendant and his accompli-
ces forcibly kidnapped victim and held him at gunpoint);
United States v. Seavoy, 995 F.2d 1414, 1422 (7th Cir. 1993)
(defendant pointed firearm at faces and heads of bank tellers
and customers and ordered them to ground, and was over-
heard threatening their lives to an accomplice).
In this case, one could plausibly conclude that Kruger’s
actions leading up to and during the kidnapping created a
specific threat of harm to Walter Reidl in order to secure his
cooperation. True, there is no evidence that, as Kruger and
Walter left the farm in Walter’s truck or at any point thereafter,
Kruger pointed the gun specifically at Walter and/or expressly
threatened to shoot him if he did not follow Kruger’s orders.
But as we pointed out at argument, it is inappropriate to isolate
the kidnapping phase of the encounter between Kruger and
the Reidls from the broader res gestae. On arrival at the Reidls’
farm, Kruger had pointed the gun at Mrs. Reidl, implicitly
threatening her life. After Walter arrived on the scene and the
three of them were discussing religion, Kruger expressly
threatened to kill both Mr. and Mrs. Reidl as well as himself. It
was against that backdrop that Walter suggested he go with
No. 15-3203 13
Kruger to Bloomington—he wanted Kruger to leave his wife
behind in safety. Kruger agreed, but he took both the rifle and
the handgun with them in Walter’s truck, and kept the
handgun at the ready in his lap. Given what had transpired,
Walter would have understood that his life remained in danger
as the two departed the farm. More to the point, Walter (and
anyone in his position) would have understood the visible
presence of the gun in Kruger’s lap as communicating a
continuing threat to harm him if he did not cooperate. There is
no question that Kruger had Walter under his control: Walter
at one point asked to be let go and Kruger refused. Only when
he took refuge in the taxidermy shop after being sent to obtain
more soda for Kruger was he able to escape. Under these
circumstances, the district court committed no obvious error in
finding that Kruger did not simply brandish a weapon during
the kidnapping, but overtly used the firearm to intimidate
Walter and convey an implicit threat to harm him (echoing the
express threats he had made earlier) if Walter attempted to
escape or did not comply with Kruger’s orders.
With that point settled, we turn to the criminal history
points that Kruger maintains were assigned to him in error. As
we noted above, Kruger was assessed one criminal history
point for a Wisconsin case in which Kruger was convicted of
operating a motor vehicle on September 10, 2013, while under
the influence of a controlled substance. R. 127 ¶ 84. He argues
that this was erroneously treated as part of his prior criminal
history when, in fact, the underlying conduct was part of the
offense of conviction in this case. Kruger was assessed an
additional two points pursuant to Guidelines section 4A1.1(d)
because the offense conduct charged in Count Two—the
14 No. 15-3203
possession of the rifle and ammunition between August 14 and
August 28, 2013—occurred while he was still serving a criminal
justice sentence (including probation) on a prior conviction.
R. 127 ¶ 87; see R. 138 at 4; R. 140 at 4-5. This was error, Kruger
maintains, because he was discharged from probation on the
prior offense (a disorderly conduct conviction) on August 16,
2013, and the record does not confirm that any portion of the
offense charged in Count Two—or anything that might qualify
as relevant conduct—actually occurred prior to August 16.3
Even if Kruger were correct that all three of these points
were assigned in error, however, it would have no effect on his
advisory sentencing range. Recall that Kruger’s adjusted
offense level of 38, coupled with a criminal history category of
III, produced a sentencing range of 292 to 365 months. But
because that range exceeded the statutory maximum term of
240 months, the statutory maximum became the Guidelines
sentencing range. U.S.S.G. §§ 5G1.1(a); 5G1.2(d). As the parties
3
In his written challenges to the pre-sentence report, Kruger did offer a
“clarification,” noting that the basis for the additional two history points
emanated from relevant conduct rather than from the conduct charged in
Count II itself. R. 125 at 2 ¶ 86. (The district court characterized this
clarification as an objection, R. 138 at 4; R. 140 at 5, but that is not how
Kruger himself labeled it.) Kruger now argues on appeal that the conduct
charged in Count I of the superseding indictment, relating to his purchase
and possession of the rifle and ammunition in June, does not constitute
relevant conduct vis-à-vis his possession of the same gun and ammunition
the following August as charged in Count II, as the district court evidently
assumed. This was not an argument he made below. Even if we deemed his
clarification (and the district court’s treatment of it) sufficient to have
preserved this point, it would not be necessary for us to resolve his
argument on its merits, for the same reasons we discuss below.
No. 15-3203 15
agree, only if Kruger were to succeed on all of the issues he has
raised in this appeal would the advisory Guidelines range drop
even partially below 240 months. (If his adjusted offense level
were 36, and his criminal history category II, the range would
be 210 to 262 months, with the statutory maximum capping the
upper end of that range at 240 months.) But we have already
concluded that it was not plainly erroneous for the district
court to apply the two-level enhancement for use of a weapon
in conjunction with the kidnapping; and that is the only
challenge that Kruger has made to his offense level. Even if we
went on to find error with respect to each of the three criminal
history points he has challenged, such that his criminal history
category would drop to II, his sentencing range, although it
would drop to 262 to 327 months, would remain substantially
above the statutory maximum. Consequently, his advisory
sentencing range would remain at 240 months—precisely the
same range that the district court consulted in arriving at an
appropriate sentence for Kruger. The district court of course
imposed a sentence substantially lower than that (180 months);
but the point is that its reference point—the advisory Guide-
lines range4— was exactly the same as it would have been if
Kruger’s criminal history category were II rather than III.
In short, Kruger has not shown that he was prejudiced by
any error in the assessment of his criminal history category. As
any such error did not affect the advisory sentencing range,
there is no likelihood that he would have received a different
4
“[T]he Guidelines are to be the sentencing court’s ‘starting point and …
initial benchmark.’” Molina-Martinez, supra, 136 S. Ct. at 1345 (quoting Gall,
supra, 552 U.S. at 49, 128 S. Ct. at 596).
16 No. 15-3203
sentence absent the error. Compare Molina-Martinez, supra,
136 S. Ct. at 1345 (application of incorrect sentencing range
resulting from forfeited error normally is sufficient by itself to
establish substantial prejudice); and United States v. Paz-Giron,
2016 WL 4376495, at *3 (7th Cir. Aug. 17, 2016) (miscalculation
of sentencing range is ordinarily sufficient to establish preju-
dice for purposes of plain-error review); with United States v.
Fletcher, 763 F.3d 711, 718 (7th Cir. 2014) (any ex post facto error
that district court may have committed in relying on more
punitive version of Guidelines post-dating defendant’s offense
to calculate his sentencing range was harmless; “[b]ecause the
court was constrained by the statutory maximum under either
version of the guidelines, any error in calculating the range for
Count I could not have affected the district court's choice of a
sentence …”).
III.
For the foregoing reasons, we AFFIRM Kruger’s sentence.