NONPRECEDENTIAL DISPOSITION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
Submitted December 6, 2017
Decided December 13, 2017
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17‐1331
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff‐Appellee, District Court for the Northern District
of Illinois, Eastern Division.
v. No. 16 CR 177‐1
MARLON WALTON, Thomas M. Durkin,
Defendant‐Appellant. Judge.
O R D E R
Marlon Walton, a felon, acted as a middleman in the sale of a loaded automatic
rifle. He was indicted for possessing a firearm after a felony conviction, 18 U.S.C.
§ 922(g)(1), pleaded guilty without a plea agreement, and was sentenced to 60 months
in prison, which was above the guidelines range of 37 to 46 months. He now appeals,
but his appointed attorney has moved to withdraw under Anders v. California, 386 U.S.
738 (1967). Walton has not accepted our invitation to respond to counsel’s motion. See
7TH CIR. R. 51(b). Counsel’s brief explains the nature of the case and addresses the
issues that this kind of appeal might be expected to involve. Because the analysis in the
brief appears thorough, we limit our review to the subjects counsel has discussed.
No. 17‐1331 Page 2
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d
551, 553 (7th Cir. 1996).
Counsel first tells us that Walton does not wish to withdraw his guilty plea. Thus
counsel appropriately omits from his brief a discussion about the voluntariness of the
plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox,
287 F.3d 667, 670–71 (7th Cir. 2002).
Counsel next considers but rejects as frivolous a potential argument that the
district court erred in applying the definition of “crime of violence” when calculating
Walton’s base offense level of 22 under U.S.S.G. § 2K2.1. To arrive at that base offense
level, the judge found that the two requirements of § 2K2.1(a)(3) were met: (1) the gun
was automatic, id. § 2K2.1(a)(3)(A)(ii); and (2) Walton’s prior conviction for aggravated
discharge of a firearm, 720 ILL. COMP. STAT. 5/24‐1.2(a) (1998), was a crime of violence,
U.S.S.G. § 2K2.1(a)(3)(B). An offense is a crime of violence if one element of the offense
is the use, attempted use, or threatened use of physical force against another. See id.
§ 2K2.1(a)(3) & cmt. n.l; id. § 4B1.2(a)(1). To determine whether Walton’s aggravated
discharge had an element of physical force, we would apply the categorical approach,
which means that we “only look to ‘the fact of conviction and the statutory definition of
the prior offense.’” See United States v. Curtis, 645 F.3d 937, 939 (7th Cir. 2011) (quoting
United States v. Woods, 576 F.3d 400, 403 (7th Cir. 2009)).
Counsel rightly concludes that despite shortcomings in the record, it would be
pointless to argue that Walton’s past crime of aggravated discharge was not a crime of
violence. Counsel notes that we have no copy of the charging document; instead the
PSR relied on available arrest reports, but “[a]rrest reports are not authorized sources
for divisibility purposes.” Welch v. United States, 604 F.3d 408, 422 (7th Cir. 2010). So the
record does not reveal under which of the six subdivisions of § 5/24‐1.2(a) Walton was
convicted. Given this shortcoming, to apply the categorical approach, we would have to
evaluate all of the “branches” of the crime to conclude that the conviction is
categorically a crime of violence. See Welch, 604 F.3d at 421–22 (applying a similar
analysis to determine if a crime is a “violent felony” under 18 U.S.C. § 924(e)).
No. 17‐1331 Page 3
Using that approach, we would necessarily conclude that Walton was convicted
of a crime of violence. At the time of Walton’s crime, the first two of § 5/24‐1.2’s six
parts read:
(a) A person commits aggravated discharge of a firearm when he
knowingly or intentionally:
(1) Discharges a firearm at or into a building he knows to be
occupied and the firearm is discharged from a place or position
outside that building; [or]
(2) Discharges a firearm in the direction of another person or in the
direction of a vehicle he knows to be occupied.
720 ILL. COMP. STAT. 5/24‐1.2(a)(1)–(2).
We have held that both of these parts are crimes of violence because
“[d]ischarging a firearm in the direction of a person or a vehicle containing a
person . . . is unquestionably the use, attempted use, or threatened use of ‘physical force
against the person of another.’” Curtis, 645 F.3d at 941 (construing subsection (a)(2));
Quezada‐Luna v. Gonzales, 439 F.3d 403, 406 (7th Cir. 2006) (“[T]he ‘discharge’ element of
§ 5/24‐1.2(a)[(1)] involves the use of physical force.”). The remaining four parts share
the same element of discharging a firearm in the direction of a person or occupied
vehicle; they merely increase the penalty if the person is known to be (or the vehicle is
known to contain) a law‐enforcement officer, § 5/24‐1.2(a)(3)–(4), or emergency medical
personnel, § 5/24‐1.2(a)(5)–(6). We thus agree with counsel that it would be pointless to
argue that violating any part of this statute is not a “crime of violence.” See Curtis,
645 F.3d at 941–42.
Counsel next considers whether Walton could argue that the judge otherwise
erred in fashioning Walton’s sentence, and we agree that any such argument would be
frivolous. We will uphold an above‐guidelines sentence against a procedural challenge
if the judge justified the variance and explained the chosen sentence to allow
meaningful appellate review. See United States v. Lockwood, 840 F.3d 896, 900 (7th Cir.
2016), cert. denied, 137 S. Ct. 1238 (2017). The judge here adequately considered the
18 U.S.C. § 3553(a) factors and Walton’s mitigating arguments. He found that the
guidelines underrepresented Walton’s criminal history because they did not reflect the
similarities between his past and present firearm crimes. See 18 U.S.C. § 3553(a)(1);
No. 17‐1331 Page 4
Lockwood, 840 F.3d at 902. The judge also considered the gravity of Walton’s current
offense. It involved a particularly dangerous gun—in Walton’s words, a “chopper
because it chops people in half.” See § 3553(a)(2)(A). And it happened in Englewood, a
neighborhood plagued by gun violence and thus a community particularly in need of
protection from Walton’s crimes. See § 3553(a)(2)(C). The judge also considered the
nature of the gun and Walton’s criminal history before rejecting his mitigating
arguments that he had not seen the gun before the day of sale. In light of the judge’s
thorough explanation of the sentence, we also agree with counsel that Walton could not
mount a plausible argument that the judge abused his broad discretion and imposed a
substantively unreasonable sentence. See United States v. Fogle, 825 F.3d 354, 359 (7th Cir.
2016).
Finally, counsel questions if the district judge abused his discretion when over
Walton’s objection he imposed a condition of supervised release that allowed a
probation officer to visit Walton at work. The judge considered the condition
appropriate because it was limited to reasonable times and because the officer would
seek to avoid disrupting Walton’s employment. See United States v. Bickart, 825 F.3d 832,
842 (7th Cir. 2016). We agree with counsel that any argument that the judge abused his
discretion would go nowhere.
Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.