United States v. Groves, Daniel ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2902
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL GROVES, SR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 04 CR 76—Allen Sharp, Judge.
____________
ARGUED JANUARY 13, 2006—DECIDED NOVEMBER 22, 2006
____________
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Daniel Groves was charged in a
two-count indictment under the “felon in possession” statute
with possessing a firearm and possessing ammunition. See
18 U.S.C. § 922(g)(1). A jury convicted him on both counts.
He challenges his conviction on the firearm count on the
ground that the evidence was insufficient to demonstrate
that the firearm traveled in interstate commerce. On the
ammunition count, he faults the district court for denying
his motion to suppress evidence obtained in a warrantless
search of his apartment. He also complains of evidentiary
2 No. 05-2902
errors and mistakes in calculating his sentence. This is one
of those rare cases in which a defendant succeeds in
demonstrating that the evidence was insufficient to prove
an element of the crime. We therefore reverse in part,
affirm in part and remand to the district court for further
proceedings consistent with our opinion.
I.
At approximately 9:40 p.m. on July 5, 2004, South Bend
resident Elton Chavez called 911 to report that gunshots
were being fired from a building across the street from his
residence. Chavez lived in Dismas House, a halfway house
for drug addicts and felons. Daniel Groves, the defendant,
lived across the street from Dismas House, in an apartment
complex. The 911 call was recorded and was played for the
jury. Chavez told the 911 operator, “There’s a guy across
the street shooting up a shotgun.” He told the operator that
the man aimed the gun at Dismas House and that the porch
light was on at the building across the street. The operator
asked Chavez if he knew who the man was and he replied,
“No.” The operator then said, “You don’t know? Do you
know if he lives there?” and Chavez replied, “I’m guessing.”
Chavez told the operator that he initially thought the blasts
were fireworks but that he “bent down and looked under-
neath the tree and sure enough this guy’s got a shotgun,
cocking it, and he wasn’t even aiming it at the sky, he was
aiming it over towards our house.” 911 Tr. at 1.1 Although
two other people (a female resident of Dismas House and
her male visitor) were with Chavez on the porch of Dismas
1
Neither the tape nor the transcript of the 911 call appear in the
certified record on appeal. Groves included a copy of the transcript
in the appendix filed with his opening brief, embedded between
pages 23 and 24 of Volume I of the trial transcript. We will refer
to this transcript as the “911 Tr.”
No. 05-2902 3
House, only Chavez claimed to have seen the gunman. The
male visitor later testified that he could not see the shooter
because of the darkness. All three ran into Dismas House
after the second shot was fired.
South Bend police officers arrived quickly after the call
was made. They first stopped to talk to Chavez who told
them that the man with the gun was wearing black and
that he fired the shots from the porch across the street
where a porch light was on. At trial, he conceded that
because it was dark, he could not tell what clothes the
shooter was wearing, but that the clothing was black. He
also acknowledged at trial that there was a tree blocking
his line of vision from the porch of Dismas House to the
porch of the building across the street, but maintained he
could lean to the left and see the man with the shotgun. The
distance between the two porches was approximately 220
feet. After talking to Chavez and the two people who had
been with him when the shots were fired, the officers
proceeded to the building across the street.
The first officer on the scene, Corporal Taylor, approached
Groves, who was standing outside the apartment building
wearing a white shirt and dark pants. Taylor asked Groves
if he had seen anyone shooting a gun. Groves denied seeing
a gun and told Taylor that he had been shooting off fire-
works. Taylor asked Groves where his gun was and Groves
responded that he never had a gun. In response to Taylor’s
questioning, Groves pointed out the porch to his apartment
and admitted he was felon. When Taylor then asked Groves
if the police could search his apartment, Groves said “No”
and told the officer to get a warrant. Taylor testified that
Groves was “adamant that we could not go in the apart-
ment” and so the officers began to search in the grass for
evidence of discharged firearms. Taylor found three 20-
gauge shell casings in the grass near the porch. Taylor
again approached Groves, told him he had found the shell
casings and asked again if he could search the apartment.
4 No. 05-2902
According to Taylor, Groves “adamantly said no, and he
said to go get a search warrant.” The officer then returned
to Dismas House, showed Chavez the three shell casings,
and said, “Yeah, you’re right. He’s shooting a shotgun.”2
The officers then applied for a warrant to search Groves’
apartment but a federal magistrate denied the application.
On July 21, a few weeks after the incident, police officers
returned to Groves’ apartment building. Special Agent
Lucas Battani, a South Bend police officer and member of
the Project Disarm Task Force, interviewed Darlene Smith,
another resident of the building that morning. According to
Agent Battani, Smith told the officers that Groves lived in
Apartment 3 with Shaunta Foster, and that Foster had
lived there for approximately five months. Agent Battani
also asked Smith about Groves’ work schedule and deter-
mined that he would be at work later that day. Agent
Battani returned to the apartment building at 1:30 p.m.
with two other members of Project Disarm, including a local
officer from the Elkhart Police Department and a federal
special agent from the Bureau of Alcohol, Tobacco, Firearms
and Explosives (“ATF”). The trio knew from the interview
of Smith that Groves would be away at work at that time.
Agent Battani had also researched Shaunta Foster in the
interim and had determined that a woman by that name
was subject to a body attachment warrant. He had not
2
There were a few minor discrepancies between the officer’s
testimony at trial and the report he filed immediately after this
incident. For example, in the report, Taylor stated that when he
first approached the house across the street from Dismas House,
he found Groves shooting off fireworks; at trial he stated that
Groves was standing outside the apartment building and told him
he had been shooting off fireworks. None of these discrepancies
are material to the issues on appeal and so we need not consider
them further.
No. 05-2902 5
determined whether the Shaunta Foster living with Groves
was the same Shaunta Foster associated with the warrant.
The officers went to Groves’ apartment that afternoon to
attempt to obtain consent to search from Foster, having
been refused by both Groves and a federal magistrate. Both
Battani and Foster testified at a suppression hearing;
although there were some points of agreement, there were
also several important differences in their stories about
what happened that day. We begin with Agent Battani’s
account. Agent Battani knocked on Groves’ door and when
Foster answered, he asked her to step outside to speak with
the three officers. Although he was accompanied by two
other officers, only Agent Battani spoke to Foster. He asked
her if she lived in the apartment and she replied that she
did not, that she sometimes stayed at the apartment but did
not reside there. Battani asked if there was anyone else in
the apartment and Foster replied that her daughter was
there. Because Smith told Battani that Foster lived in the
apartment, he persisted and asked Foster how long she had
lived there, and she replied that she had moved in around
February 14th of that year (approximately five months
earlier). Foster told Battani that Groves owned the apart-
ment and that he was her boyfriend. In response to ques-
tions from Battani, Foster told the agents that she had full
access to the apartment and often cleaned it for Groves.
When Battani asked for Foster’s consent to search the
apartment, Foster balked and told Battani that, without
first talking to Groves, she did not believe she had the
authority to consent to a search. Battani told her that the
consent was not between himself and Groves; it was
between himself and Foster. He then showed her a consent
form and read it to her line by line, asking her at the end of
each paragraph if she understood that part of it. Each time,
Foster indicated she understood. When he finished reading
the form, Battani again asked Foster to consent to a search.
This time, Foster agreed to do so and signed the form.
6 No. 05-2902
Agent Battani explained that they would be looking for
firearms and ammunition and asked Foster to lead them
into the apartment. As she walked up the stairs, she told
Battani that she had something for him. When they went
into the apartment, Foster went into the bedroom and
returned with a plastic bag containing marijuana. Foster
told the agents that the marijuana was hers and that
Groves did not use any type of narcotics. Foster and her
daughter sat at the kitchen table with Battani while the
other two agents searched the apartment. At times, the
searching agents asked Foster questions about the apart-
ment. For example, they asked her which nightstand in the
bedroom was hers and whether she had access to both
nightstands. As the search proceeded, Foster told Battani
that she had never seen firearms in the apartment but that
she had seen bullets on Groves’ nightstand. From a drawer
in Groves’ nightstand, the officers recovered a magazine
containing five .22 caliber bullets that appeared to Foster
to be of the same type she had seen earlier. The officers also
recovered a few shotgun shells and a bill in Foster’s name
for a telephone line at Groves’ apartment. As the officers
left the apartment, Battani told Foster that there was a
body attachment warrant for her. Later, the officers
contacted the local school district and determined that
Foster’s daughter was registered at school using Groves’
address as her home address.
Groves was arrested and charged with being a felon in
possession of a firearm and being a felon in possession of
ammunition. Groves moved to suppress the ammunition
discovered in his nightstand, arguing that Foster had
neither the actual authority nor the apparent authority to
consent to a search of the apartment. The district court held
a hearing at which Agent Battani and Shaunta Foster
testified. We have already detailed Battani’s testimony
above and turn now to the points of divergence in Foster’s
testimony. Foster testified that she told Battani that she
No. 05-2902 7
never lived at Groves’ apartment but merely visited there
frequently, sometimes staying overnight. She maintained
that she lived at her mother’s apartment. She explained
that she gave Groves the phone line as a gift and that she
enrolled her daughter in school using Groves’ address
because he lived in a better school district than she did.
According to Foster, she repeatedly told Battani that she
could not sign the consent form because she did not live
there and her name was not on the lease. She asked
repeatedly to call Groves and was refused each time. She
testified that when she refused to sign the consent, Battani
told her that he would take her downtown and take her
daughter to Child Protective Services “but that one way or
another he was going to get what he needed to go up in
there.” Supp. Tr. at 33-34. Foster testified that she signed
the consent only because of the threat to remove her child.
According to Foster, Battani told her that if she did not
consent, she would be criminally charged for any contra-
band found in the house. Consistent with Battani’s testi-
mony, Foster testified that after she had signed the consent
form and the officers were already in the house, Battani
informed her there was a warrant out for her arrest. At the
suppression hearing, Battani denied ever threatening
Foster with the removal of her child.
Following the hearing, the district court issued a short
order, concluding that Foster had apparent authority to
consent to the search of Groves’ apartment, that Agent
Battani did not engage in inappropriate coercion or threats
related to Foster’s daughter, and that Foster consented to
the search. Groves took his case to a jury and was convicted
on both counts. Because no firearm was ever recovered, his
conviction on the firearm possession rested largely on the
eye-witness testimony of Chavez, the neighbor who told the
911 operator that he did not know who had fired the shots.
In court, Chavez identified Groves with no difficulty. The
ammunition seized in the apartment search was entered
8 No. 05-2902
into evidence over Groves’ objection. The district court
sentenced Groves to forty-one months’ imprisonment after
adding four levels to his base offense level because he used
the weapon in question to commit the offense of criminal
recklessness, a class D felony under Indiana law. Groves
timely appeals both his conviction and his sentence.
II.
On appeal, Groves contends that the district court erred
when it denied his motion to suppress the evidence obtained
in the warrantless search of his apartment. He also main-
tains the district court should have granted his motion for
a judgment of acquittal on Count I, the felon in possession
of a firearm charge, because the government failed to prove
that the firearm in question had traveled in interstate
commerce. He complains that the district court erred in
allowing the government to rebut some of the testimony of
Shaunta Foster when she was the government’s own
witness. He contests his sentence on two grounds, claiming
first that the district court did not follow the sentencing
procedures set forth in Federal Rule of Criminal Procedure
32(i)(4)(A), and second that the court erred in adding four
levels to his base offense level.
A.
In reviewing the district court’s denial of a motion to
suppress, we review questions of law de novo and factual
findings for clear error. United States v. Denberg, 212 F.3d
987, 991 (7th Cir. 2000). “To the Fourth Amendment rule
ordinarily prohibiting the warrantless entry of a person’s
house as unreasonable per se, one ‘jealously and carefully
drawn’ exception recognizes the validity of searches with
the voluntary consent of an individual possessing author-
ity.” Georgia v. Randolph, 126 S. Ct. 1515, 1520 (2006)
No. 05-2902 9
(citations omitted). That individual may be the resident
against whom the evidence is sought or a fellow occupant
who shares common authority over the property, when the
suspect is absent. Randolph, 126 S. Ct. at 1520 (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) and
United States v. Matlock, 415 U.S. 164, 170 (1974)). “[T]he
exception for consent extends even to entries and searches
with the permission of a co-occupant whom the police
reasonably, but erroneously, believe to possess shared
authority as an occupant.” Randolph, 126 S. Ct. at 1520
(citing Illinois v. Rodriguez, 497 U.S. 177, 186 (1990)). The
government argued that Foster had both actual and
apparent authority to consent to a search of Groves’ apart-
ment and that she consented voluntarily.
The district court found that Foster’s testimony and the
circumstantial evidence presented at the suppression
hearing established that “she was involved at the very least
in the mutual use of the property in question and had joint
access and control.” United States v. Groves, No. 3:04cr0076
(N.D. Ind. Nov. 8, 2004) (hereafter “Suppression Order”), at
1. The court stated that, although Foster exhibited hostility
when testifying, “she actually admitted a good deal that
relates to her joint or common possession of the apartment
in question. The totality of sworn testimony plus the
documentary proof causes this Court to conclude that she
indeed had joint or common authority with reference to the
apartment in question.” Suppression Order at 2. The court
noted that consent was the primary issue and made the
following findings:
This Court listened carefully and observed keenly both
of these witnesses on the witness stand. Agent Lucas
Battini [sic] testified with caution, great care and
restraint. Shaunta Foster testified with great passion
and some hostility. After careful consideration and
observation, it is the conclusion of this Court that Task
Force Agent Lucas Battini [sic] did not engage in
10 No. 05-2902
inappropriate coercion or threats with regard to
Shaunta Foster’s child in order to secure the consent to
search the apartment. On this subject, the Court must
with some sadness most respectfully decline to credit
that portion of Shaunta Foster’s testimony.
Suppression Order at 2. The court then declined to give any
weight to the refusal of a judge to grant the officers a search
warrant, commenting that the circumstances of that refusal
did not bear on the decision the court was required to make.
Without further findings, the court ruled, “When it is all
said and done, she consented to the search and had appar-
ent authority to do so. The motion to suppress is denied.”
Suppression Order at 3. Groves argues on appeal that
Foster had neither actual nor apparent authority to consent
to the search and that her consent was not voluntary.
A.
We begin with the question of actual and apparent
authority. Under Matlock, the government bears the burden
of demonstrating that the third party possessed common
authority over or other sufficient relationship to the
premises or effects sought to be inspected. Matlock, 415
U.S. at 171; Denberg, 212 F.3d at 991.
Common authority is, of course, not to be implied from
the mere property interest a third party has in the
property. The authority which justifies the third-party
consent does not rest upon the law of property, with its
attendant historical and legal refinements, . . . but rests
rather on mutual use of the property by persons gener-
ally having joint access or control for most purposes, so
that it is reasonable to recognize that any of the co-
inhabitants has the right to permit the inspection in his
own right and that the others have assumed the risk
that one of their number might permit the common
area to be searched.
No. 05-2902 11
Matlock, 415 U.S. at 171 n. 7 (citations omitted). The
relevant question for authority to consent under Matlock,
then, is whether Foster had joint access or control of the
apartment for most purposes, or whether she appeared to
a reasonable officer to have joint access or control of the
premises for most purposes. Facts that militate in favor of
a finding of actual or apparent authority include but are not
limited to: (1) possession of a key to the premises, see
United States v. Goins, 437 F.3d 644, 649 (7th Cir.),
cert. denied, 2006 WL 1221989 (2006); United States v.
Rodriguez, 888 F.2d 519, 522-23 (7th Cir. 1989); (2) a
person’s admission that she lives at the residence in
question, Goins, 437 F.3d at 649; Denberg, 212 F.3d at 991;
(3) possession of a driver’s license listing the residence as
the driver’s legal address, Denberg, 212 F.3d at 991; (4)
receiving mail and bills at that residence, Denberg, 212 F.3d
at 991; (5) keeping clothing at the residence, Goins, 437
F.3d at 647; Denberg, 212 F.3d at 991; (6) having one’s
children reside at that address, Denberg, 212 F.3d at 991;
(7) keeping personal belongings such as a diary or a pet at
that residence, Goins, 437 F.3d at 649; Denberg, 212 F.3d at
991; (8) performing household chores at the home, Goins,
437 F.3d 644; (9) being on the lease for the premises and/or
paying rent, Goins, 437 F.3d at 646; and (10) being allowed
into the home when the owner is not present, Goins, 437
F.3d at 649.3 For the apparent authority analysis, the court
must consider what the officers knew at the time they
sought Foster’s consent and whether those facts were
sufficient to demonstrate that the officers reasonably, but
erroneously, believed that Foster possessed shared author-
3
This is certainly not an exhaustive list and we do not mean to
suggest that district courts should use this as a checklist of factors
in determining actual or apparent authority. Rather, it is offered
to show the types of facts that should and could be considered in
evaluating the issue of authority to consent to a search.
12 No. 05-2902
ity as an occupant. Randolph, 126 S. Ct. at 1250. Facts that
came to light after the search began cannot reasonably have
influenced the officers’ beliefs regarding whether Foster
possessed apparent authority.
We cannot discern from the district court’s Suppression
Order any findings of fact that support the court’s conclu-
sion that Foster possessed apparent authority. The court
states that Foster’s testimony and the documentary evi-
dence establish that she had mutual use and joint access
and control of Groves’ apartment. The court also states that
Foster “admitted a good deal that relates to her joint or
common possession of the apartment.” But these are legal
conclusions rather than factual findings. We do not know on
what facts the court relied in reaching this conclusion, nor
do we know what part of the testimony the court credited
and what part the court disbelieved. There were significant
differences between the stories told by Agent Battani and
Shaunta Foster at the suppression hearing. The only
testimony from Foster that the court declined to credit was
her claim that Agent Battani threatened to remove her
child if she refused to consent to the search. But this fact
related to the voluntariness of her consent and not to her
actual or apparent authority to consent. Moreover, these
legal conclusions are consistent with a finding of actual
authority but the court ultimately found that Foster had
apparent authority to consent to the search. Without
knowing which testimony and which documents were
credited, without knowing on what facts the court relied in
reaching its conclusion, and without knowing whether the
court concluded that Foster’s authority was actual or
apparent, we cannot review the court’s conclusion that
Foster had authority to consent to the search. We will
therefore remand for the district court to make fact-findings
in support of its conclusion and to clarify whether Foster
had actual or apparent authority to consent, or indeed
whether she had any authority to consent to a search of the
apartment and the nightstand.
No. 05-2902 13
After we heard oral argument in this appeal, the
Supreme Court held in Randolph that “a warrantless
search of a shared dwelling for evidence over the express
refusal of consent by a physically present resident cannot be
justified as reasonable as to him on the basis of consent
given to the police by another resident.” 126 S. Ct. at 1526.
Although Groves was not physically present at the time the
officers sought consent from Foster, the reasoning of
Randolph adds to our understanding of the consent analysis
and will be relevant on remand. In Randolph, the Supreme
Court noted that the common authority that counts for
Fourth Amendment purposes may be broader than the
rights accorded by property law. “The constant element in
assessing Fourth Amendment reasonableness in the consent
cases, then, is the great significance given to widely shared
social expectations, which are naturally enough influenced
by the law of property, but not controlled by its rules.”
Randolph, 126 S. Ct. at 1521. The Randolph Court ex-
plained that shared tenancy is understood to include an
assumption of risk that a guest who is unwelcome to one
tenant might be admitted by another tenant when the first
tenant is absent. Randolph, 126 S. Ct. at 1522.
The tenants might have made an exceptional agreement
that no one would admit a guest without the consent of all,
but the police were entitled to rely on the more usual
expectation that no such agreement existed. Randolph, 126
S. Ct. at 1522. However, a visitor standing at the door of
shared premises at the invitation of one occupant would
have no confidence that one person’s invitation was suffi-
cient to enter when the other occupant says, “Stay out.”
Randolph, 126 S. Ct. at 1522-23. “Without some very good
reason, no sensible person would go inside under those
conditions.” 126 S. Ct. at 1523. The Court reasoned that
because the “co-tenant wishing to open the door to a third
party has no recognized authority in law or social practice
to prevail over a present and objecting co-tenant, his
14 No. 05-2902
disputed invitation, without more, gives a police officer no
better claim to reasonableness in entering than the officer
would have in the absence of any consent at all.” Randolph,
126 S. Ct. at 1523. The Court thus concluded that a
warrantless search of a shared residence “over the express
refusal of consent by a physically present resident cannot be
justified as reasonable as to him on the basis of consent
given to the police by another resident.” Randolph, 126 S.
Ct. at 1526.
The Court considered the continued significance of
Matlock in light of its holding in Randolph and drew what
it called “a fine line[.]” 126 S. Ct. at 1527.
[I]f a potential defendant with self-interest in objecting
is in fact at the door and objects, the co-tenant’s permis-
sion does not suffice for a reasonable search, whereas
the potential objector, nearby but not invited to take
part in the threshold colloquy, loses out.
This is the line we draw, and we think the formalism is
justified. So long as there is no evidence that the police
have removed the potentially objecting tenant from the
entrance for the sake of avoiding a possible objection,
there is practical value in the simple clarity of comple-
mentary rules, one recognizing the co-tenant’s permis-
sion when there is no fellow occupant on hand, the
other according dispositive weight to the fellow occu-
pant’s contrary indication when he expresses it.
Randolph, 126 S. Ct. at 1527. We quote this language
because there was some evidence that the officers here may
have effectively “removed the potentially objecting tenant
from the entrance for the sake of avoiding a possible objec-
tion.” As we noted, Groves was not present when the
officers returned to the apartment to request consent to
search from Foster. By Agent Battani’s own admission, he
waited until he knew that Groves would not be home before
he approached the apartment. According to Foster, she
No. 05-2902 15
repeatedly asked to call Groves and was refused an opportu-
nity to do so. In contrast, Battani testified that he never
expressly refused Foster’s request to call Groves. Neither of
the parties focused on whether the officers procured Groves’
absence for the purpose of avoiding an objection and this
factor may be relevant to the analysis of the reasonableness
of the warrantless search on remand.
B.
We turn to the issue of voluntariness. Groves argues that
Foster’s consent was not given voluntarily. He contends
that the district court did not resolve illogical and inconsis-
tent statements in Agent Battani’s testimony and that the
district court failed to make findings of fact relevant to the
resolution of the voluntariness question. The government
must demonstrate by a preponderance of the evidence that
consent to search was in fact voluntarily given, and not the
result of duress or coercion, express or implied. Bustamonte,
412 U.S. at 248; United States v. Basinski, 226 F.3d 829,
833 (7th Cir. 2000). Whether consent was voluntary is a
question of fact to be determined from the totality of all of
the surrounding circumstances. Bustamonte, 412 U.S. at
227. We review fact-findings made in connection with a
decision on suppression for clear error; mixed questions of
law and fact as well as pure questions of law are reviewed
de novo. United States v. Santiago, 428 F.3d 699, 704 (7th
Cir. 2005); United States v. Banks, 405 F.3d 559, 570 (7th
Cir. 2005); United States v. Cellitti, 387 F.3d 618, 621 (7th
Cir. 2004); Basinski, 226 F.3d at 833-34. In Bustamonte, the
Supreme Court articulated several factors that militate
against a finding of voluntariness in the confession setting
including, but not limited to, youth, lack of education, low
intelligence, lack of any advice regarding constitutional
rights, the length of detention, the repeated and prolonged
nature of the questioning, and the use of physical punish-
16 No. 05-2902
ment such as the deprivation of food or sleep. 412 U.S. at
226. The Court stated that a determination of voluntariness
to consent to a search must similarly take into account
evidence of minimal schooling, low intelligence, and the lack
of any effective warnings to a person about her rights.
Bustamonte, 412 U.S. at 248. No single factor is dispositive.
Cellitti, 387 F.3d at 622. “Rather, it is only by analyzing all
the circumstances of an individual consent that it can be
ascertained whether in fact it was voluntary or coerced.”
Bustamonte, 412 U.S. at 233; Cellitti, 387 F.3d at 622. Only
through a “careful sifting of the unique facts and circum-
stances of each case” may the court determine the question
of voluntariness. Bustamonte, 412 U.S. at 233.
Therein lies our problem, for the district court made only
one finding relevant to the issue of voluntariness and that
finding is somewhat ambiguous. The district court noted
only that it credited Battani’s testimony over that of Foster
on the issue of whether Battani engaged in “inappropriate
coercion or threats with regard to Shaunta Foster’s child in
order to secure the consent to search the apartment.”
Suppression Order at 2. The use of the word “inappropriate”
in qualifying “coercion and threats” suggests that the
district court may have found some level of threats or
coercion appropriate. Any level of threats or coercion related
to Foster’s child would weigh against a finding of voluntari-
ness. Moreover, we know nothing about Shaunta Foster’s
level of education, her intelligence, or her age. The tran-
script gives us pause on the issues of education and intelli-
gence; Foster referred to the ATF agent as “FTD,” for
example, and some of her speech is consistent with a lack of
education.4 In weighing the totality of the circumstances
4
“ATF” refers to the Bureau of Alcohol, Tobacco, Firearms and
Explosives. We presume that “FTD” refers to “Florists’ Telegraph
Delivery,” a well-known flower delivery service. It is certainly
(continued...)
No. 05-2902 17
surrounding the consent to search, the district court should
have considered those factors together with the number of
officers present, what show of force they made, whether
they were armed and whether their weapons were visible.
The court did not address Foster’s claim that Battani
threatened to charge Foster with any contraband found in
the apartment or her claim that Battani would hold her
downtown while he obtained the paperwork he needed to
enter the apartment, implying that he could get a warrant
when he had tried and already failed to do so. See United
States v. White, 979 F.2d 539, 542 (7th Cir. 1992) (baseless
threats to obtain a search warrant may render consent
involuntary). It is impossible for us to review the district
court’s reasoning without express findings and some
indication of how the court weighed all of the circumstances
surrounding the consent. As Groves points out, both Agent
Battani and Foster testified that Foster initially refused to
sign the consent. After refusing, Foster then consented after
Battani read the consent form to her. Foster claims that
there were threats in the intervening time period, specifi-
cally threats to remove her child to Child Protective Ser-
vices and threats to charge Foster with any contraband
discovered in the apartment after the “paperwork” was
obtained to enter the apartment. Battani testified that
there were no threats. We are left wondering why Foster
relented so quickly without any change in the circum-
stances. On remand, the district court should make specific
fact-findings regarding the voluntariness of Foster’s
(...continued)
possible that Foster simply misspoke, and we do not mean to
disparage her in any way. But the issue of intelligence and
education was one for the government to prove, and in viewing the
record, in the absence of any findings by the district court on this
issue, this malapropism along with numerous grammatical errors
in Foster’s testimony prompt us to seek express findings from the
district court.
18 No. 05-2902
consent. See Rodriguez, 888 F.2d at 524 (remanding so that
the district court may make further findings on the scope of
consent to search). The court should consider the factors set
forth above and analyze the totality of the circumstances
surrounding Foster’s consent. The court’s findings and
analysis may well warrant upholding the court’s refusal to
suppress the evidence, but on this record, we are unable to
review that decision.
C.
Groves raises two challenges to his conviction for posses-
sion of a firearm by a felon. First, he argues that there was
insufficient evidence of an independent basis, source or
origin for the in-court identification of Groves by Chavez.
Second, he maintains that there was insufficient evidence
that the shotgun in question was transported in, possessed
in, or affected interstate commerce. We need not address
the in-court identification because Groves prevails on his
claim that the government failed to present sufficient
evidence on the interstate commerce element of section
922(g)(1).
Section 922(g)(1) provides that it “shall be unlawful for
any person . . . who has been convicted in any court of, [sic]
a crime punishable by imprisonment for a term exceeding
one year . . . to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm
or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or
foreign commerce.” 18 U.S.C. § 922(g)(1). The shotgun that
Groves was alleged to have fired on July 5, 2004, was never
recovered. Chavez, the only witness to testify to the exis-
tence of the shotgun, did not identify a make, model, or
manufacturer and provided no description of the firearm
except to say that he heard a sound like a shotgun being
loaded and then saw a shotgun in the hands of the shooter.
He told the 911 operator that it “looked like a sawed off shot
No. 05-2902 19
gun.” 911 Tr. at 1. In seeking to prove the interstate
commerce element of the crime, the government produced
testimony from John Phinney, a criminal investigator with
the ATF. The prosecutor asked Phinney, “[A]re there any
major manfacturers of shotguns in the state of Indiana?”
Phinney replied, “No, sir, there are not.” The prosecutor
asked, “So if a shotgun was found in Indiana or was present
in Indiana, it would not have been manufactured by any
major manufacturer; is that correct?” Phinney replied,
“That is correct.” Trial Tr., Vol I, at 97. For the ammunition
recovered from Groves’ apartment on July 21, 2004,
Phinney was able to identify the manufacturers and
testified that the shells and bullets were manufactured
outside of Indiana and therefore had traveled in interstate
commerce. Trial Tr., Vol. I, at 98-99. Groves does not
challenge the sufficiency of the interstate commerce
evidence for the ammunition charge.
In reviewing a defendant’s challenge to the sufficiency of
the evidence, we view the evidence in the light most
favorable to the prosecution. United States v. Bernitt, 392
F.3d 873, 878 (7th Cir. 2004), cert. denied, 544 U.S. 991(2005). We affirm if any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt. Bernitt, 392 F.3d at 878. We will overturn a jury
verdict for insufficiency of the evidence only if, after viewing
the evidence in the light most favorable to the government,
the record is devoid of evidence from which a reasonable
jury could find guilt beyond a reasonable doubt. Bernitt, 392
F.3d at 878. We do not reweigh the evidence or make
credibility determinations at this stage. Bernitt, 392 F.3d at
878. The government maintains that Groves waived this
issue by failing to raise it in his motion for judgment of
acquittal. In that motion, Groves raised only his challenge
to the eyewitness identification. The government argues
that when a motion for judgment of acquittal raises specific
arguments, any arguments not presented in the motion are
20 No. 05-2902
waived. See United States v. Moore, 363 F.3d 631, 637 (7th
Cir. 2004), vacated on Booker grounds sub nom. Young &
Jackson v. United States, 125 S. Ct. 1019 (2005). At the
close of the government’s case, defense counsel moved for a
judgment of acquittal pursuant to Rule 29 of the Federal
Rules of Criminal Procedure “on the basis that there has
been a total failure of proof linking Mr. Groves to being the
person who possessed and discharged the shotgun on the
night of July 5th, 2004.” Tr. Vol. II, at 5. Counsel did not
raise any other issue in the motion and thus waived his
challenge to the sufficiency of the evidence on the interstate
commerce prong of the firearm charge. United States v.
Allen, 390 F.3d 944, 947 (7th Cir. 2004); United States v.
Buchmeier, 255 F.3d 415, 419 (7th Cir. 2001). Therefore,
this court will review for plain error. Allen, 390 F.3d at 947-
48. In this context, “plain” means clear or obvious. United
States v. Stott, 245 F.3d 890, 900 (7th Cir. 2001), amended
on reh’g in part, 15 Fed. Appx. 355 (7th Cir. 2001). Even if
the error is plain, to meet this standard the error must also
affect substantial rights, and it must seriously affect the
fairness, integrity or public reputation of judicial proceed-
ings. Stott, 245 F.3d at 900.
The government’s main proof of the interstate commerce
element for the firearm charge was Phinney’s testimony
that there were no “major manufacturers” of shotguns in
Indiana. But the agent gave no definition of “major” and
was never asked about minor manufacturers or statistical
probabilities that the gun was manufactured outside of
Indiana. Without some indication of the meaning of this
testimony, without placing it in the context of the gun
manufacturing industry, it is simply too vague to support
proof of this element of the crime beyond a reasonable
doubt. Minor manufacturers could, collectively, manufac-
ture the majority of shotguns produced. Any conclusion
drawn from this testimony would be the result of pure
speculation as to what the agent meant by “major.” Specula-
No. 05-2902 21
tion cannot be the basis for proof in the civil context much
less the basis for proof beyond a reasonable doubt.
Wainscott v. Henry, 315 F.3d 844, 851 (7th Cir. 2003).
The government protests that if we hold this proof
insufficient, the government will never be able to prove the
interstate commerce element in a case where the defendant
successfully disposes of a firearm before trial, in contraven-
tion of our cases that specifically hold that it is not neces-
sary for the government to produce the firearm at trial. This
is simply not true. Granted, the government’s case was
hampered by the absence of the gun. In some cases, the
government will be able to prove that a firearm was
manufactured in another state because a witness is able to
identify the make, model or manufacturer of the gun. No
witness in this case was able to do so. But the government
could have questioned the ATF agent further to determine
what he meant by “major.” As we pointed out at oral
argument, follow-up questions could have clarified (if this
is indeed the case) that there are no companies manufactur-
ing shotguns in Indiana but that individuals or small
enterprises sometimes manufacture this type of firearm.
Further questioning could have quantified the percentage
of shotguns that are manufactured by major manufacturers
versus by individuals or by other minor manufacturers. If
the percentages demonstrate that it is highly unlikely that
the shotgun was manufactured in Indiana, such testimony
could support proof of this element. At oral argument, the
government stated that the ATF expert was unwilling to
testify any more specifically about shotgun manufacturers
in Indiana. Perhaps the facts did not bear out the govern-
ment’s view of “major” versus “minor.” We cannot say on
this record why the expert declined to offer any more detail.
But there is insufficient evidence to prove that the shotgun
moved in interstate commerce at any point in time.
The government next argues that, even if the shotgun was
manufactured in Indiana, the prosecution could (and did)
22 No. 05-2902
prove this element of the crime by demonstrating that
Groves’ possession of the shotgun affected interstate
commerce. The government maintains that, so long as the
shotgun possession had some minimal nexus to interstate
commerce, we may apply the aggregation doctrine first
described in Wickard v. Filburn, 317 U.S. 111 (1942). In
Wickard, an Ohio farmer operated a farm on which, in the
year involved, he raised twenty-three acres of wheat. Each
year, he sold a portion of the crop, used some of it to feed
poultry and livestock on the farm, and used some to make
flour for home consumption. The Secretary of Agriculture
fined the farmer under the Agricultural Adjustment Act of
1938 because he harvested twelve more acres of wheat than
his allotment under the Act permitted. The Supreme Court
affirmed the application of the Act to the farmer’s purely
intrastate activity because the volume of home-consumed
wheat, in the aggregate, would have a substantial influence
on price and market conditions for all wheat. See United
States v. Lopez, 514 U.S. 549, 559-60 (1995); Wickard, 317
U.S. at 128. One of the primary purposes of the Act was to
increase the market price of wheat and limit the supply
available. Because home-grown wheat competes with wheat
in commerce, Congress could regulate home-grown wheat
using its authority under the Commerce Clause. Lopez, 514
U.S. at 560; Wickard, 317 U.S. at 128.
The government suggests that it provided sufficient proof
of the minimal nexus described in Wickard in several ways.
First, the government argues that it was Groves who fired
the shotgun towards Dismas House where Chavez, a
construction worker who ran his own business, resided.
According to the government, this conduct rendered Dismas
House at least temporarily unsafe and ineffective as a
residence for convicts, drug addicts, employers and workers.
Displacement of workers could result in jobs moving out of
state which, in turn, would affect the cost of labor and the
local demand for out-of-state labor. Moreover, the govern-
No. 05-2902 23
ment would have to pay for other accommodations for the
residents of Dismas House or would have to release them,
imposing a financial burden or rendering the area unsafe,
which could cause citizens to leave the state of Indiana.
Second, the government explains, Groves possessed shotgun
shells that were manufactured out of state. A jury could
reasonably conclude that the missing shotgun was capable
of firing these shells, and thus the shotgun would be a
“market compliment” [sic] for the shells, affecting the
demand for out-of-state shells. Third, and in a similar vein,
the government argues that a purely intrastate firearm is
a market substitute for a gun obtained through interstate
commerce. As such, a failure to regulate the possession of
intrastate firearms along with interstate firearms would
undercut the regulation of the interstate market. Given
where this line of argument is headed, we are half-sur-
prised that the government failed to argue that Groves’ use
of the firearm as a market substitute for fireworks on that
July 5th evening undercut the interstate market in fire-
crackers.
These might be viable arguments if the Supreme Court
had not completely rejected them eleven years ago in United
States v. Lopez, 514 U.S. 549 (1995), a case the government
inexplicably failed to cite in its brief. Lopez addressed the
constitutionality of another subsection of 18 U.S.C. § 922.
In that subsection, Congress made it a federal offense “for
any individual knowingly to possess a firearm at a place the
individual knows, or has reasonable cause to believe, is a
school zone.” 18 U.S.C. § 922(q)(1)(A) (hereafter “Subsection
922(q)”).5 A man convicted of bringing a gun and five bullets
to the high school where he was a student challenged
Subsection 922(q) on the grounds that it exceeded Congress’
5
Following Lopez, Congress enacted a new version of Subsection
922(q) that contains a requirement that the firearm “has moved
in or that it otherwise affects interstate or foreign commerce.”
24 No. 05-2902
authority to legislate control over the public schools. The
district court found that Congress had the power to legislate
in this area under the Commerce Clause because gun
possession near a school was an activity in and affecting
commerce. Lopez, 514 U.S. at 551-52. The appellate court
reversed, finding that the statute exceeded Congress’s
authority to legislate under the Commerce Clause.
The Supreme Court noted that there are three broad
categories of activity that Congress may regulate under its
commerce power. “First, Congress may regulate the use of
the channels of interstate commerce.” Lopez, 514 U.S. at
558. “Second, Congress is empowered to regulate and
protect the instrumentalities of interstate commerce, or
persons or things in interstate commerce, even though the
threat may come only from intrastate activity.” Lopez, 514
U.S. at 558. Third, “Congress’ commerce authority includes
the power to regulate those activities having a substantial
relation to interstate commerce,” for example, “those
activities that substantially affect interstate commerce.”
Lopez, 514 U.S. at 558-59. The Court noted that Subsection
922(q) was a criminal statute that, by its terms, had
nothing to do with commerce or economic enterprises.
Lopez, 514 U.S. at 561. Nor was it “an essential part of a
larger regulation of economic activity, in which the regula-
tory scheme would be undercut unless the intrastate
activity was regulated.” Lopez, 514 U.S. at 561. The Court
held that Subsection 922(q) could not be sustained under
the cases “upholding regulations of activities that arise out
of or are connected with a commercial transaction, which
viewed in the aggregate, substantially affects interstate
commerce,” cases such as Wickard. Lopez, 514 U.S. at 561.
The Court characterized Wickard as “perhaps the most far
reaching example of Commerce Clause authority over
intrastate activity,” and noted that it involved economic
activity in a way that possession of a gun in a school zone
does not. Lopez, 514 U.S. at 560.
No. 05-2902 25
Subsection 922(q), unlike section 922(g), had no express
jurisdictional element that would limit its reach to firearm
possessions that additionally had an explicit connection
with or effect on interstate commerce. In Lopez, the govern-
ment nevertheless sought to defend the statute on the
grounds that possession of a firearm in a local school zone
does in fact substantially affect interstate commerce. In
particular, the government argued that possession of a
firearm near a school could result in violent crime; violent
crime would, in turn, affect the national economy in several
ways. First, the costs of violent crimes are substantial, and
through the mechanism of insurance, the costs are spread
throughout the population. Second, violent crime reduces
the willingness of individuals to travel to parts of the
country that are deemed unsafe. Third, the presence of guns
near schools poses a threat to the educational process by
threatening the learning environment, ultimately resulting
in a less educated and less productive citizenry, which in
turn would have an adverse effect on the nation’s economic
well-being. Lopez, 514 U.S. at 563-64.
The Court reasoned that if it accepted the government’s
argument about the costs of violent crime and the effects on
the national economy, there would be no limit to the
activities that Congress could regulate, even in areas where
States traditionally have been sovereign such as education
and law enforcement. Lopez, 514 U.S. at 564. Because the
possession of a gun in a school zone is not economic activity
that, if repeated, would substantially affect interstate
commerce, the Court found that to accept this line of
argument would obliterate the distinction between what is
truly national and what is truly local. Lopez, 514 U.S. at
567-68.
We are faced here with a statute that, unlike Subsection
922(q), includes a requirement that the gun possession be
“in or affecting commerce.” As we found above, the govern-
ment failed to produce sufficient evidence that the gun had
26 No. 05-2902
traveled in interstate commerce, and the government is
thus left to argue the same sorts of tenuous connections to
commerce that the Court expressly rejected in Lopez. For
example, the government contends that Groves’ possession
of the firearm led to the violent act of firing the gun toward
a halfway house where convicts and drug addicts lived. In
turn, this violence could displace workers, encourage people
to move from the unsafe area, and increase the govern-
ment’s cost of housing persons who would otherwise be able
to live in Dismas House. In Lopez, the Supreme Court
rejected the costs of violent crime as the basis for upholding
a statute criminalizing gun possession; the Court rejected
this rationale because it would federalize areas of criminal
law that have historically been the province of the States.
A rationale that could not sustain Subsection 922(q) cannot
be the basis for upholding a conviction under section
922(g).6 Failing to require the government to prove an
essential element of the crime affects substantial rights and
seriously affects the public reputation of judicial proceed-
ings. Because allowing a conviction to stand without proof
of an essential element of the crime meets the standard for
plain error, we reverse the firearm possession conviction. As
we noted above, we need not address Groves’ alternate
argument regarding the sufficiency of the in-court eyewit-
6
We likewise reject the government’s argument that the case
should be controlled by Gonzales v. Raich, 125 S. Ct. 2195 (2005).
There the court rejected a Commerce Clause challenge to the
Controlled Substances Act, which the federal government sought
to apply to an entirely intrastate possession and manufacture of
medical marijuana in California. California allowed that manufac-
ture and possession under the State’s Compassionate Use Act.
The Court relied heavily on Wickard, treating marijuana like an
agricultural commodity similar to wheat. In Lopez, the Court
distinguished Wickard because the growth of crops involved
commerce in a way that the possession of guns did not.
No. 05-2902 27
ness identification because we reverse Count I on Com-
merce Clause grounds.
D.
Groves contends that the district court erred when it
allowed the government to present rebuttal evidence in
response to the testimony of Shaunta Foster. According
to Groves, the only witness called in the defense case
was Michael Bennett, an investigator for the Federal
Defender’s office, who testified about measurements of the
distance between the porch of Dismas House and the porch
of Groves’ apartment. Bennett also presented pictures he
had taken of the scene. The government’s rebuttal wit-
nesses were the six officers who were on the scene on July
5th. Each countered statements by Shaunta Foster, who
testified that the officers surrounded Groves that night in
a threatening fashion, clutching batons, and that she had
seen the officer who collected shotgun shells that night on
the other side of the fence in a neighbor’s yard, rather than
near the porch of Groves’ apartment. The government also
recalled Agent Battani to counter other statements Foster
made at trial.
We review the district court’s decision to allow rebuttal
testimony for abuse of discretion. United States v. Grintjes,
237 F.3d 876, 879 (7th Cir. 2001); Mercado v. Ahmed, 974
F.2d 863, 872 (7th Cir. 1992). The purpose of rebuttal
testimony is to contradict, impeach, or defuse the impact of
the evidence offered by an adverse party. Grintjes, 237 F.3d
at 879. The government called Shaunta Foster in its case-
in-chief. However, during her cross-examination, Groves’
counsel asked her questions that he conceded were beyond
the scope of her direct examination. When the government
objected, defense counsel offered to bring Foster back to the
stand during the defense case. The court then allowed
defense counsel to question Foster out of order, that is,
28 No. 05-2902
during the government’s case-in-chief. Foster testified that
the officer who retrieved shotgun shells from the yard came
around from the other side of the fence. She also testified
that the officers surrounded Groves in a circle, spoke to him
in a threatening tone of voice, and that one of the officers
“had his baton hitting on his legs.” Tr. Vol. I, at 84-89.
During the government’s initial questioning of Foster, she
also testified that Agent Battani threatened to take away
her child when obtaining her consent to search.
The court was within its discretion to allow the rebuttal
testimony of the six officers present on July 5th in order to
counter Foster’s testimony under defense questioning.
Because the court allowed defense counsel to question
Foster out of order rather than call her back to the stand
later, this part of her testimony was part of the defendant’s
case-in-chief. As such, the government was an adverse party
to that testimony and could rightly challenge it. Allowing
Agent Battani’s rebuttal testimony is a closer question.
When Foster testified that Battani threatened her, she did
so in response to the government’s questioning in its case-
in-chief. She was not, at that time, an adverse witness to
the government, and a party is not generally entitled to
rebut its own witness. As the court admonished the govern-
ment, “You put her on. You knew what she was going to
say. You led her right into it. Now, you’re a very good
lawyer and you’ve got to live with the consequences of what
you do.” Tr. Vol. I, at 82. To the extent it was an error for
the district court nonetheless to allow rebuttal by Battani,
we think the error was harmless. Foster’s statement that
Battani threatened her was largely irrelevant to the issues
the jury had to decide. It is unlikely that Battani’s brief
rebuttal affected the jury’s assessment of the relative
credibility of Foster and Battani on any issue in the trial.
No. 05-2902 29
E.
Finally, Groves challenges the court’s Guidelines calcula-
tion and the manner in which the court held the sentencing
hearing. Because we have reversed the conviction on Count
I, the district court must re-sentence Groves. We will
address his arguments to the extent that they are relevant
to re-sentencing. First, he contends that the district court
failed to follow the sentencing procedure established by
Federal Rule of Criminal Procedure 32(i)(4), “Opportunity
to Speak.” Under that provision, before imposing sentence,
the court must:
(i) provide the defendant’s attorney an opportunity to
speak on the defendant’s behalf;
(ii) address the defendant personally in order to permit
the defendant to speak or present any information to
mitigate the sentence; and
(iii) provide an attorney for the government an opportu-
nity to speak equivalent to that of the defendant’s
attorney.
According to Groves, the court pronounced sentence prior to
allowing Groves, his attorney, or the government attorney
to speak. The government posits that the court merely
announced preliminary findings, then heard all the parties,
and subsequently imposed the sentence, all in compliance
with Rule 32.
We review the question of whether the district court
complied with mandatory sentencing procedures under a
non-deferential standard of review. See United States v.
Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005),
petition for cert. filed, (U.S. Jan. 5, 2006) (No. 05-8615)
(reviewing the question of whether the district court
complied with mandatory post-Booker sentencing procedure
using non-deferential review). Our review of the sentencing
transcript reveals that both Groves and the government
30 No. 05-2902
find support in the record for their respective characteriza-
tions of the sentencing hearing. The district court began the
colloquy by announcing that he would “go through in some
detail the Sentencing Memorandum which will be entered
in this case.” Sent. Tr. at 2. Before any of the parties were
invited to address the court, the judge read substantial
portions of the Sentencing Memorandum he had prepared,
and concluded, “[T]his court will and is inclined to sentence
this defendant to 41 months, to be followed by two years of
supervised release.” Sent. Tr. at 5. Defense counsel then
spoke for the first time. On each point that defense counsel
raised, the court responded using past tense. For example,
in response to an argument about the description of prior
cases in the PSR, the judge said, “It didn’t persuade me.”
Sent. Tr. at 7. And in response to defense counsel’s argu-
ment on the government’s motion for upward departure, the
court remarked, “I didn’t grant it.” Sent. Tr. at 8. Groves
declined to make a statement and the court then told the
government, “You’re on.” The government began with by
arguing for the upward departure by citing Groves’ prior
criminal record. The court replied, “Well, I didn’t consider
all of that, as you know. You will see it when it’s in writing.
I sorted it down very carefully.” Sent. Tr. at 9. After a few
more remarks from the government, the court stated, “I will
sign off on the Sentencing Memorandum. . . . The sentence
is 41 months. He gets credit for time served. The sentence
is to be followed by two years of supervised release.” Sent.
Tr. at 10.
The government characterizes the court’s initial remarks
as “tentative sentencing decisions” and argues that all
parties were invited to speak before sentence was “formally
imposed.” The court’s language, though, was not particu-
larly tentative. The tone of the court during the parties’
remarks suggests that the court had already ruled on every
issue raised and was unwilling to reconsider any of those
rulings based on the parties’ arguments and statements.
No. 05-2902 31
Although the sentence may not have been “formally im-
posed” before the parties spoke, this colloquy was not
entirely consistent with the spirit of Rule 32(i)(4)(A). The
judge essentially signaled to the parties that his ruling was
final before the hearing began. But the court did comply
with the letter of Rule 32; it did not formally enter the
sentencing order until after the parties had an opportunity
to speak. On remand, we have no doubt that the court will
fully comply with Rule 32(i)(4)(A) by considering the parties’
arguments and statements before the sentence is imposed.
Groves also challenges the court’s calculations under the
Guidelines, complaining that the court exceeded its author-
ity in adding four levels to Groves’ offense level based on a
finding that Groves used the shotgun to commit the offense
of criminal recklessness under Indiana law. See U.S.S.G. §
2K2.1(b)(5). Section 2K2.1(b)(5) provides for a four-level
increase to the base offense level if “the defendant used or
possessed any firearm or ammunition in connection with
another felony offense.” Application Note 4 of the Commen-
tary for that provision defines “felony offense” as “any
offense (federal, state, or local) punishable by imprisonment
for a term exceeding one year, whether or not a criminal
charge was brought, or conviction obtained.” In the PSR, in
reporting the government’s version of the offense, the
probation officer noted that Groves possessed and used the
shotgun (and presumably ammunition, given the shells
found on the ground near the porch that night) to fire shots
in the direction of Dismas House, endangering the lives of
the three people present on the porch. PSR, ¶ 6(j). Groves
did not object to this paragraph, and did not object at the
sentencing hearing to the additional four levels under
section 2K2.1(b)(5). The argument is therefore waived and
we review the court’s calculation for plain error. Allen, 390
F.3d at 947-48; Stott, 245 F.3d at 900.
The Indiana statute provides that a person who reck-
lessly, knowingly, or intentionally performs an act that
32 No. 05-2902
creates a substantial risk of bodily injury to another person
commits criminal recklessness. Ind. Code § 35-42-2-2. If the
offense is committed while armed with a deadly weapon, it
constitutes a Class D felony under Indiana law. Id. The
court found that Groves committed this offense by firing the
shotgun toward Dismis House.7 The testimony of Chavez
and the testimony of the officers who retrieved spent
shotgun shells from Grove’s yard that night together were
sufficient to demonstrate by a preponderance of the evi-
dence that Groves committed this offense. We see no error
in the district court’s calculations. Groves complains that
the jury did not find beyond a reasonable doubt that he
committed this Indiana offense and he did not admit the
facts necessary to prove that charge beyond a reasonable
doubt. He contended that the court’s findings were made
under, at most, a preponderance of the evidence standard.
He characterizes the use of the preponderance standard as
a violation of United States v. Booker, 543 U.S. 220, 125 S.
Ct. 738 (2005). But Groves’ sentence did not exceed the
statutory maximum, and the district court did not treat the
Guidelines as mandatory. The use of the preponderance
standard was appropriate, and there is no error to correct.
See United States v. Sliman, 449 F.3d 797, 800-01 (7th Cir.
2006); United States v. Robinson, 435 F.3d 699, 701 (7th
Cir. 2006).
III.
On remand, the district court should enter fact-findings
in support of its ruling on the motion to suppress, and
7
The possibly intrastate nature of the shotgun does not matter
in this context. The origin of the gun is irrelevant under Indiana
state law. Moreover, the use of the gun at this stage of the
sentencing proceedings would be evaluated under the standards
for relevant conduct, where the preponderance standard applies.
No. 05-2902 33
should consider the totality of the circumstances in deter-
mining whether Foster’s consent was voluntarily given. If
Foster’s consent was not voluntary, the suppression ruling
cannot stand, and the conviction on the ammunition count
would be in jeopardy. We do not mean to suggest a particu-
lar outcome for the motion to suppress; we note only that,
as it stands, there is insufficient fact-finding and insuffi-
cient analysis for appellate review. It is possible that after
the court makes the appropriate findings in support of its
decision to deny that motion, defense counsel may withdraw
its objection to the ruling; it is also possible there may still
be some non-frivolous basis for further review. We reverse
the conviction on Count I, the firearm possession charge, for
the reasons stated above. In light of that reversal, the
district court should resentence Groves. At any new sen-
tencing hearing, the district court should allow an appropri-
ate Rule 32 colloquy before imposing sentence. In all other
respects, we affirm.
34 No. 05-2902
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-22-06