In the
United States Court of Appeals
For the Seventh Circuit
No. 16‐3733
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
GREGORY F. YOUNG,
Defendant‐Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:16‐cr‐40002‐SLD‐1 — Sara Darrow, Judge.
ARGUED MARCH 29, 2017 — DECIDED JULY 13, 2017
Before WOOD, Chief Judge, and ROVNER and WILLIAMS,
Circuit Judges.
ROVNER, Circuit Judge. Gregory F. Young pled guilty to one
count of unlawful possession of a firearm by a felon. He
challenges his sentence on appeal, asserting that the court
procedurally erred by relying on a clearly erroneous fact and
2 No. 16‐3733
by incorrectly applying guidelines commentary when deter‐
mining his sentence. We affirm.
I.
In 2007, Young was convicted of two counts of burglary in
Indiana. After serving a term of imprisonment, he was released
on probation in March 2015. Young was under the influence of
cocaine when he committed the robberies and so, as a condi‐
tion of probation, he was subject to random drug screenings.
In October 2015, he appeared for a random drug test wearing
a “Whizzinator,” a prosthetic penis that comes with a synthetic
urine pack.1 The device was confiscated and Young provided
a urine sample that tested positive for cocaine, opiates and
marijuana. A warrant was issued for his arrest. The next
month, he was stopped by a state trooper while driving
through Illinois because his windshield was obstructed by a
number of air fresheners. See United States v. Garcia‐Garcia,
633 F.3d 608, 615–16 (7th Cir. 2011) (noting that air fresheners
may (or may not) constitute material obstructions under
Illinois law depending on their size, their position relative to
the driverʹs line of vision, and whether they are stationary or
mobile); 625 ILCS 5/12‐503(c) (“No person shall drive a motor
vehicle with any objects placed or suspended between the
driver and the front windshield … which materially obstructs
1
The Whizzinator bills itself as a sex toy and warns purchasers that the
product is “not intended for any illegal purposes. Nor is it to be used to
defeat lawfully administered drug tests.” See http://www.
thewhizzinator.com/whizzinator.html (last visited July 6, 2017). Yet the
product comes with “medical grade urine” and an “ultra‐quiet flow
system.”
No. 16‐3733 3
the driverʹs view.”). A records check revealed that he had an
outstanding warrant in Indiana. He consented to a pat‐down
search that led to the discovery of six rounds of .40 caliber
ammunition, a quarter gram of heroin and a half gram of
marijuana in his pants pockets. In a subsequent search of the
vehicle, law enforcement officers found a loaded Smith &
Wesson .40 caliber semi‐automatic handgun, an unloaded SKS‐
type semi‐automatic 7.62 mm rifle, nine SKS rifle magazines
(eight of which were fully loaded with a total of 221 rounds of
7.62 mm ammunition), 1.3 pounds of marijuana, and a half
pound of synthetic marijuana. After waiving his right to
remain silent, Young explained to law enforcement officers
that he had the guns and ammunition because he believed that
the gang to which he previously belonged wanted to kill him
over an old drug debt.
Young pled guilty to a single count of unlawful possession
of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). The
parties agreed that Young’s base offense level was 20 under
guidelines section 2K2.1(a)(4)(B). That level was increased by
four under section 2K2.1(b)(6)(B) because Young possessed the
firearm in connection with another felony offense, namely,
possession of a controlled substance. The court subtracted
three levels for acceptance of responsibility under section
3E1.1, resulting in a total offense level of 21. Young’s criminal
history placed him in Category V, and the resultant sentencing
range was 70 to 87 months. Young requested a sentence of 70
months and the government simply requested a within‐
guidelines sentence.
The probation officer suggested that an upward variance
might be appropriate under section 4B1.2(a) and the accompa‐
4 No. 16‐3733
nying Application Note 4, based on Young’s prior burglary
convictions. Section 4B1.2(a), which defines the term “crime of
violence,” had recently been amended to remove “burglary of
a dwelling” from the list of crimes of violence. Had it remained
on the list, Young’s base offense level would have been 22
rather than 20, and his resultant guidelines range would have
been 84 to 105 months’ imprisonment. Application Note 4
provides that there may be cases in which a burglary involves
violence but does not qualify as a crime of violence under
section 4B1.2(a), and so an upward departure may be appropri‐
ate to account for that circumstance. Young responded to the
probation officer’s suggestion by contending that there were
no facts in the presentence report regarding his burglary
convictions that would support an upward variance for
violence.
The presentence report described the two counts of
burglary for which he was convicted as follows:
On February 5, 2007, the defendant did break and
enter into the dwelling of Hugo Gonzalez Ibarra,
with the intent to commit a felony therein, to‐wit:
the crime of Theft. Count 2 ‐ Burglary, a Class B
Felony, I.C. Section 35‐43‐2‐1(1)(B)(i).
On February 5, 2007, the defendant did break and
enter into the dwelling of James Johnson, with the
intent to commit a felony therein, to‐wit: the crime
of Theft. Count 4 ‐ Burglary, a Class B Felony, I.C.
Section 35‐43‐2‐1(1)(B)(i).
R. 22, at 7. Young was also charged with one count of taking
property from Ibarra by using or threatening the use of force
No. 16‐3733 5
while armed with a knife, and one count of knowingly confin‐
ing Ibarra without his consent in a residence while armed with
a deadly weapon, with both counts occurring the same day as
the burglary charges. These additional charges were dismissed.
In explaining Young’s sentence, the district court re‐
marked:
What I don’t think is adequately captured by the
guidelines is your base offense level. I’ve already
found that the base offense level should be 20
because the assault—semi‐assault rifle, the SKS that
you possessed in addition to the loaded handgun—
which you don’t receive another bump for because
that only applies if three or more guns are located
accurately applies because of the high‐capacity
magazine that was in close proximity.
But what isn’t taken into consideration, which the
guideline application notes say that I can consider,
is the fact that your burglary convictions are no
longer considered crimes of violence like technically
when calculating the guidelines under Chapter 4,
but the revised guidelines indicate that the Court
may consider—and this is Application Note 4 to
Chapter 4B1.2, that the Court may consider in
instances which a burglary involves violence but
does not qualify as a crime of violence as defined, a
higher sentence or a higher criminal history category
than would have applied if the burglary qualified as
a crime of violence; therefore, an upward departure
or variance may be appropriate.
6 No. 16‐3733
If your burglary applied to your base offense level
as a crime of violence, then your base offense level
would have been—your adjusted level would have
been 23, and your guideline range would have been
84 to 105.
In your PSR—it is scant with details to the burglary,
but it does allege that you broke into the dwelling of
another individual with the intent to commit a theft,
and you were convicted of two of those counts of
burglary. And I do find that that’s not accurately—
that conduct and the concern in somebody having
that prior conviction and then possessing a firearm
is not adequately captured by the range of—or at
least the offense level, adjusted offense level of 21.
Other than that, I think your guideline range is
appropriate.
R. 33, at 74‐75. The court then remarked on a number of
aggravating circumstances, as well as other section 3553(a)
factors before sentencing Young to eighty‐four months’
imprisonment. The court characterized that sentence as within
the properly calculated guideline range, “but also what would
be the low end of the guideline range if your burglaries were
incorporated as a crime of violence into your base offense
level[.]” R. 33, at 79. Young appeals.
II.
On appeal, Young contends that the district court commit‐
ted procedural error when it relied on a clearly erroneous fact
to enhance his sentence. Our review of sentencing decisions is
No. 16‐3733 7
limited to whether they are reasonable, applying the abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007);
United States v. McLaughlin, 760 F.3d 699, 703 (7th Cir. 2014).
We first must ensure that the district court committed no
significant procedural error, such as incorrectly calculating the
guidelines range, failing to consider the section 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to explain adequately the chosen sentence. Gall, 552 U.S. at 51.
After United States v. Booker, 543 U.S. 220 (2005), whether the
district court followed the proper procedures in imposing
sentence is a question of law that we review de novo. United
States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).2
Young contends that the district court procedurally erred
when it found that his prior convictions for burglary to a
dwelling involved violence and then relied on that clearly
erroneous fact in determining his sentence. Although we agree
with Young that the PSR contains no evidence supporting a
finding that the burglaries were violent, the district court never
made such a finding and did not adjust Young’s sentence on
2
The government asserts that we should review for plain error because the
sentence was based on facts in the PSR to which Young did not object. We
disagree. The PSR notes that, in addition to the burglaries for which he was
convicted, Young was charged with two additional crimes during the Ibarra
burglary that could be described as violent. However, the PSR also indicates
that those charges were dropped, and so there are no facts in the PSR
supporting a finding that the burglaries were violent. Moreover, Young
objected to the probation officer’s suggestion that his sentence could be
enhanced on the ground that the burglary was violent, arguing that there
was no evidence in the PSR that would support that factual conclusion.
Therefore, Young preserved his objection and we will review the issue de
novo.
8 No. 16‐3733
that basis. The court simply addressed the probation officer’s
recommendation, noting what the sentencing range would
have been if the burglaries still qualified as crimes of violence.
The court also remarked that the chosen sentence of eighty‐
four months was both within the properly calculated guide‐
lines range and at the bottom of the range if the burglaries had
counted as crimes of violence. But the court gave no indication
that it was enhancing the sentence because it found the
burglaries to be crimes of violence.
A fair reading of the district court’s comments during
sentencing indicates that the court gave thorough consider‐
ation to both the properly calculated guidelines range and the
relevant section 3553(a) factors. The court first indicated that
the guidelines did not adequately account for the offense
conduct, noting that Young possessed both a semi‐assault rifle
and a loaded handgun, but that there was no sentencing
consequence for the second firearm because an enhancement
for multiple weapons took effect only when three or more
firearms were located. As for the burglaries, the court noted
that there were very few details of those crimes in the PSR but
that the calculated offense level did not adequately capture the
concerns raised by a person possessing firearms with two
burglary convictions in his recent criminal history.
The district judge was also “concerned greatly” by Young’s
conduct shortly after being released from prison for the
burglaries. From a recidivism perspective, the court was
troubled that Young tested positive for drugs shortly after
being placed on probation, and that he used a device to
attempt to evade that positive test result. The court also noted
that Young possessed nine magazines, eight of which were
No. 16‐3733 9
loaded. Four were high‐capacity magazines that fit the semi‐
automatic rifle that Young possessed. In all, he had 221 rounds
of ammunition and a loaded handgun in addition to the rifle,
admittedly because he believed that a gang wanted to kill him
over a drug debt. The court remarked:
Think about it for a minute. Riding around in a
vehicle with all this ammunition, with a high‐capac‐
ity magazine, with a semi‐assault rifle, with a bayo‐
net attached, with a loaded firearm, with over a
pound of marijuana, with an amount of heroin, so
much could have gone wrong. The reason why you
possessed those things—I have no doubt that, if
pressed, you would have used them.
And that’s a very reason why the status offense of
being a felon in possession is, is criminalized. It’s
why this statute exists, to address situations such as
what occurred here. So, this offense conduct is
incredibly serious.
R. 33, at 76. As with the positive drug test, the judge remarked
that she was very concerned that Young engaged in this
conduct so soon after being released from prison, raising
questions about recidivism and specific deterrence.
In the end, the court summarized the reasons for the chosen
sentence:
But because of the concerns that I’ve expressed
about the seriousness of the offense, my grave
concerns about your high likelihood to recidivate
based on your prior non‐compliance with probation,
10 No. 16‐3733
as well as the fact that the previous lengthy sentence
did not deter your criminal conduct in this case, the
seriousness of the offense, all your history and
characteristics, I find that still within the range of
your properly calculated guideline range but also
what would be the low end of the guideline range if
your burglaries were incorporated as a crime of
violence into your base offense level, I find that a
sentence of 84 months is appropriate and not greater
than necessary to address all of those factors.
R. 33, at 79.
Noticeably absent from that list is a finding that the
burglaries were violent or a reliance on such a finding. The
burglaries concerned the court because the defendant, with
those convictions in his history, and with a controlled sub‐
stance problem, was now upping the ante by arming himself
to the hilt. The court expressed some disagreement with the
guideline amendment that removed burglary from the list of
crimes of violence. But after Pepper v. United States, 562 U.S.
476, 501 (2011), district courts are free to disagree with a
guideline provision and adjust a sentence accordingly. Indeed,
in an appropriate case, a district court may even impose a non‐
guidelines sentence based on disagreement with the Sentenc‐
ing Commission’s views. In this instance, the court at most
used its concerns about the burglaries, followed by a weapons
offense, to adjust the sentence within the properly calculated
guidelines range. There was no error in doing so.
AFFIRMED.