United States v. Bryant, Darryl ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2850
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRYL BRYANT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 04-013-CR-01 B/F—Sarah Evans Barker, Judge.
____________
ARGUED FEBRUARY 22, 2005—DECIDED AUGUST 22, 2005
____________
Before KANNE, WOOD, and SYKES, Circuit Judges.
KANNE, Circuit Judge. A grand jury charged Darryl
Bryant, a convicted felon, with unlawful possession of
firearms in violation of 18 U.S.C. § 922(g)(1). Bryant
entered a plea agreement, which was filed with the dis-
trict court on March 24, 2004. Under the terms of the
plea agreement, Bryant accepted full responsibility. He also
admitted that he possessed three firearms and that he had
previously been convicted of a felony. Bryant agreed that
his base offense level was at least 20, because his prior
conviction was for a crime of violence. U.S.S.G.
§ 2K2.1(a)(4)(A). The plea agreement, however, left two
contested factual issues related to the offense conduct:
whether one of the firearms Bryant possessed was a
2 No. 04-2850
semiautomatic assault weapon as defined in 18 U.S.C.
§ 921(a)(30),1 and whether Bryant possessed the firearms in
connection with another felony offense—namely, drug
dealing.
After the parties filed the plea agreement with the
district court, Blakely v. Washington, 124 S. Ct. 2531(2004), and this court’s decision in United States v. Booker,
375 F.3d 508 (7th Cir. 2004), were handed down in quick
succession. In their sentencing memoranda, the government
and Bryant presented their respective views on the effect
that these cases might have on Bryant’s sentence. Bryant
restated his intention to plead guilty, waive a trial by jury,
and have the judge resolve the disputed factual issues.
Bryant insisted, however, that pursuant to the Sixth
Amendment principles set forth in Blakely and Booker, the
judge must find those facts beyond a reasonable doubt.
At the sentencing hearing on July 15, 2004, the district
judge presciently concluded that the federal sentencing
guidelines would not pass constitutional muster in light
of Blakely and Booker. Accordingly, she stated her intention
to fashion a sentence pursuant to her discretion. The judge
opined that she was not required to make findings of fact,
let alone make those findings beyond a reasonable doubt,
because she was not adhering to the guide-
1
According to 18 U.S.C. § 921(a)(30), a semiautomatic assault
weapon must have the ability to accept a detachable magazine, a
pistol grip that protrudes conspicuously beneath the action of the
weapon, and a flash suppressor or threaded barrel designed to
accommodate a flash suppressor. Bryant concedes that the rifle at
issue had the first two characteristics, but he disputes the third,
as discussed in greater detail below. Although not relevant to the
disposition of this case, we note that § 921(a)(30) was repealed
after the Violent Crime Control and Law Enforcement Act of 1994,
108 Stat. 1796, expired on September 13, 2004 (following Bryant’s
conviction and sentencing).
No. 04-2850 3
lines. Nevertheless, she resolved to make the findings of
fact because of the uncertainty regarding the fate of the
guidelines and our directive in Booker that judges should
impose alternative sentences until that uncertainty is
settled.
The judge then addressed the two disputed factual issues
identified in the plea agreement. The presentence investiga-
tion report (“PSR”) recommended a base offense level of 22,
pursuant to U.S.S.G. § 2K2.1(a)(3) because, in the view of
the probation officer, Bryant’s weapon was in fact a semiau-
tomatic assault weapon because it sported a “flash suppres-
sor” and thus fit the definition contained in § 921(a)(30). In
addition, the PSR recommended a four-level enhancement
pursuant to U.S.S.G. § 2K2.1(b)(5) because Bryant pos-
sessed his firearms in connection with drug dealing.
Bryant argued that the device was not a “flash suppres-
sor,” and thus the rifle was not a semiautomatic assault
weapon as defined in § 921(a)(30), which requires that such
a firearm have “a flash suppressor or threaded
barrel designed to accommodate a flash suppressor.” As
evidence, Bryant presented to the judge a printed web page
advertisement of a device labeled a “flash hider”; Bryant
contended that the device on his rifle muzzle was the
advertised “flash hider,” not a “flash suppressor.” The
government, on the other hand, presented testimony from
a special agent of the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (“BATFE”), who testified that the mounted
device was a flash suppressor. The agent also testified that
he sent pictures of the rifle to the BATFE’s firearms
technology branch, which opined that the pictured firearm
was a semiautomatic assault weapon because it appeared
to have all of the prohibited characteristics listed in §
921(a)(30).
The judge heard this evidence and evaluated the other
available evidence, including information contained in
4 No. 04-2850
the PSR and the photographs of the rifle. The judge found
that the device was in fact a flash suppressor or that the
rifle had the capacity to accommodate such a device, and
thus the rifle qualified as a semiautomatic assault weapon.
She expressly made her finding “by a preponderance and by
the standard of beyond a reasonable doubt.” The judge
agreed that a base offense level of 22 was therefore appro-
priate.
The judge also considered information in the PSR and
other evidence indicating that Bryant had possessed
firearms in connection with drug dealing. The PSR con-
tained ample evidence that Bryant was in fact dealing
drugs. The day before the confiscation of the firearms,
Bryant sold cocaine to a government informant. Following
the controlled buy, the government recovered 3.14 grams of
crack cocaine, 9.85 grams of marijuana, electronic scales,
plastic baggies, and various controlled substances in tablet
form. Bryant was found to have $1,018 in his pocket,
including a marked bill from the controlled buy. Finally,
Bryant was shown to have had no verifiable employment
since May 2000. Upon consideration of this evidence, the
judge concluded beyond a reasonable doubt that Bryant did,
in fact, possess the firearms in connection with drug
dealing.
After making both findings of fact, the district judge
reiterated, “I’m not legally bound by the guidelines, but I
will take the guidelines into account as I fashion a sen-
tence.” The judge allowed Bryant to address the court, and
noted the fact that Bryant accepted responsibility for his
crimes. The judge also carefully weighed the various factors
present in Bryant’s case, including his personal back-
ground, his criminal background, his age, his education,
and his family situation. She also considered the gravity of
Bryant’s offense and the likelihood that punishment would
deter future criminal behavior by Bryant. In short, the
judge carefully considered the various factors enumerated
No. 04-2850 5
in 18 U.S.C. § 3553.
Following her oral recitation of the factors present in
Bryant’s case, the judge in her discretion imposed a sen-
tence of 84 months’ imprisonment, three years of supervised
release, and a $100 special assessment. The judge noted
that the statutory maximum for violation of 18 U.S.C. §
922(g)(1) is 120 months’ imprisonment. She also noted that,
had she applied the guidelines, Bryant would have had a
total offense level of 25 and criminal history category of IV,
making the applicable sentencing range 84-105 months’
imprisonment. The sentence Bryant actually received,
therefore, would have been appropriate even if imposed
pursuant to the guidelines.
On appeal, Bryant argues that the district judge
erred when she attempted to anticipate the fate of the
guidelines and, in doing so, she failed to sentence Bryant in
accordance with the methodology that the Supreme Court
eventually adopted in Booker. Bryant also holds fast to his
view that the judge had to make her findings of fact beyond
a reasonable doubt and that she failed in that respect, too.
Because of these perceived errors, Bryant seeks a remand
for resentencing.
Bryant is wrong on all counts. The district judge’s
approach nicely predicted the Supreme Court’s reasoning in
United States v. Booker, 125 S. Ct. 738 (2005). There was
nothing wrong with the judge’s attempt to anticipate the
state of the federal guidelines and render a sentence
accordingly, particularly in light of Blakely and this court’s
Booker opinion—both of which cast significant doubt on the
continued viability of the federal sentencing scheme as it
stood. The judge may not have gotten the “precise holding”
correct, as Bryant argues, but she certainly got close enough
that we can discern no error in Bryant’s sentencing.
Because the judge presciently treated the guidelines as
advisory, she could sentence Bryant up to the statutory
maximum—ten years—before running afoul of the Sixth
6 No. 04-2850
Amendment, as set forth in Booker’s predecessor cases. See,
e.g., Blakely, 124 S. Ct. at 2531; Apprendi v. New Jersey,
530 U.S. 466 (2000). By treating the guidelines as advisory,
the judge necessarily sidestepped the constitutional infir-
mity identified in Booker—judicial factfinding coupled with
mandatory application of the guidelines. Booker, 125 S. Ct.
at 750, 764; accord United States v. Antonakopoulos, 399
F.3d 68, 75 (1st Cir. 2005) (“The [Booker] error is not that
a judge . . . determined facts under the Guidelines which
increased a sentence beyond that authorized by . . . an
admission by the defendant; the error is only that the judge
did so in a mandatory Guidelines system.”). The judge
sentenced Bryant to 84 months’ imprisonment, well beneath
the statutory maximum. There is no Booker error here, so
Bryant’s argument on that score fails.
The district judge committed no error with respect to her
findings of fact, either. Bryant interprets Booker and its
predecessor cases as requiring all factual determinations in
sentencing to be proved beyond a reasonable doubt. We
reiterate, however, that these cases do not foreclose judicial
factfinding in the sentencing context, nor do they dictate
that judges must find those facts beyond a reasonable
doubt. See United States v. Dean, 414 F.3d 725, No. 04-
3172, 2005 WL 1592960, at *4-5 (7th Cir. July 7, 2005);
United States v. Della Rose, 403 F.3d 891, 907 (7th Cir.
2005); see also U.S.S.G. § 6A1.3. Booker and its predecessors
make clear that a Sixth Amendment problem emerges if
judicial factfinding results in a sentence exceeding the
statutory maximum, for example, or if such factfinding
requires a particular sentence in the context of a mandatory
sentencing guidelines scheme. See Dean, 2005 WL 1592960,
at *5 (“With the guidelines now merely advisory,
factfindings that determine the guidelines sentence do not
determine the actual sentence, because the sentencing
judge is not required to impose the guidelines sentence; and
so the Sixth Amendment is not in play.”); United States v.
No. 04-2850 7
George, 403 F.3d 470, 472 (7th Cir. 2005); accord United
States v. Trujillo-Terrazas, 405 F.3d 814, 818 (10th Cir.
2005) (“By rendering the Guidelines discretionary, the
[Supreme] Court saved the process of judicial factfinding
from unconstitutionality under the Sixth Amendment.”).
Such circumstances are not present here. The judge
treated the guidelines as advisory, and Bryant’s sentence
was well below the statutory maximum sentence he
could have received on the basis of facts he admitted in his
plea agreement. We also note that the judge properly
followed the procedure to calculate a guidelines sentence,
thus indicating that she took the guidelines into account
in fashioning a sentence. Although the judge indicated
her belief that she did not have to conduct factfinding when
treating the guidelines as advisory, she prudently did so
anyway. See Fed. R. Crim. P. 32(i)(3)(B); U.S.S.G. § 6A1.3.
This case, therefore, does not present a situation like that
in Dean, where we remanded for resentencing because the
district court failed to resolve factual disputes in the
PSR—a requirement that survives even under an advisory
guideline scheme. 2005 WL 1592960, at *4-5.
All that remains, then, of Bryant’s challenge to the
district court’s sentencing procedure is his contention that
the judge’s factual findings were erroneous. We review
these factual findings for clear error. United States v.
Corral, 324 F.3d 866, 870 (7th Cir. 2003). Under this
deferential standard of review, we will not overturn the
factual findings of the district court unless we are left
with the definite and firm conviction that a mistake has
been made. Id.; see also United States v. Stokes, 211 F.3d
1039, 1044 (7th Cir. 2000) (“Where there are two permissive
views of the evidence, the fact finder’s choice between them
cannot be clearly erroneous.”).
Upon review of the record, we cannot say that the
judge’s finding that Bryant’s rifle was a semiautomatic
8 No. 04-2850
assault weapon was clearly erroneous. As recounted above,
the judge considered evidence from a variety of sources,
including testimony from a BATFE agent, regarding
the identity of the device in question. Much of the evidence
pointed to the conclusion that the device was a “flash
suppressor.” The judge did not stop at the point of
simply identifying the device as a flash suppressor. She also
queried the BATFE agent regarding the purposes served by
such a device, and the agent replied that its main function
is to “suppress” muzzle flash, which makes the weapon
more dangerous to law enforcement personnel. Although
Bryant provided evidence that the device was a “flash
hider,” he also conceded that the device reduced muzzle
flash to some degree (though he continued
to insist—without citation—that a flash suppressor must
completely eliminate muzzle flash).
After considering all of the evidence, the judge con-
cluded that the apparent dispute was largely a matter of
semantics, as regardless of how the device in question is
labeled, the evidence indicated that it performed the
function of a flash suppressor as defined by the statute.
Thus, the judge found that the device in question was a
flash suppressor and the rifle, therefore, was a semiauto-
matic assault weapon.2 We conclude that the record amply
2
Bryant also takes issue with the judge’s alternative conclusion
that even if the device was not a flash suppressor, the rifle could
readily accommodate such a device. Bryant claims that the judge
erroneously interpreted the statutory language and that there was
no evidence that his rifle had a “threaded barrel designed to
accommodate a flash suppressor,” which the statute specifies as
an alternative to having a mounted flash suppressor. See 18
U.S.C. § 921(a)(30). But the record supports the judge’s conclusion
that the device mounted on Bryant’s rifle was in fact a
flash suppressor, so we need not bog down in a discussion about
the meaning of the statutory language or the judge’s interpreta-
(continued...)
No. 04-2850 9
supports the judge’s finding, and we find no error in that
determination.
Likewise, we find no clear error in the district judge’s
factual determination that Bryant possessed the firearms
in connection with drug dealing. As noted, the judge
evaluated detailed evidence in the PSR indicating that
Bryant possessed the firearms in connection with an-
other felony offense—drug dealing—or with the knowl-
edge that the firearms would be used or possessed in
connection thereof. See U.S.S.G. § 2K2.1(b)(5). Bryant
offered no evidence to dispute these facts at the hearing,
even though he had opportunity to do so. Instead, he
challenges the evidence in the PSR as inadequate to
establish a nexus between the firearms and the drugs
found. But on the basis of the evidence in the record, the
judge was on solid ground concluding as she did, given the
ubiquitous observation in the courts that guns are “tools
of the drug trade.” See, e.g., United States v. Castillo,
406 F.3d 806, 815 (7th Cir. 2005). Plus, the evidence in the
record indicates that the firearms were found in close
physical proximity to the narcotics in question, a circum-
stance we have held as presumptively establishing a
nexus between the firearms and drug activity. See, e.g.,
Corral, 324 F.3d at 873. We find no clear error in the
judge concluding as she did that Bryant possessed his
firearms in connection with drug dealing.
Finally, pursuant to Booker, we must evaluate the
reasonableness of Bryant’s sentence. 125 S. Ct. at 765. We
repeat that the district judge imposed a sentence that
happened to be at the low end of the calculated guide-
lines range. We have recognized that sentences properly
2
(...continued)
tion thereof in making her alternative finding. Cf. United States
v. Marshall, 83 F.3d 866, 869 (7th Cir. 1996).
10 No. 04-2850
calculated under the guidelines (and there is no indica-
tion that the district judge erred in her calculations) are
entitled to a rebuttable presumption of reasonableness.
See United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).
Furthermore, the reasonableness of a sentence is guided
by the factors set forth in 18 U.S.C. § 3553(a). See Booker,
125 S. Ct. at 765-66; United States v. Alburay, 415 F.3d 782(7th Cir. 2005).
As described, the district judge gave detailed and full
consideration to the various factors in play in § 3553,
and the resulting sentence was within the properly calcu-
lated guidelines range. In sum, we have no diffi-
culty concluding that Bryant’s sentence was reasonable, and
Bryant has offered no valid argument to convince
us otherwise.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-22-05