United States v. Thomas, Randell D. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2063
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RANDELL D. THOMAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03 CR 158—John C. Shabaz, Judge.
____________
SUBMITTED SEPTEMBER 9, 2005—DECIDED JULY 7, 2006
____________
Before BAUER, POSNER and WOOD, Circuit Judges.
BAUER, Circuit Judge. Randell D. Thomas appeals his
conviction for being a felon in possession of ammunition, 18
U.S.C. § 922(g)(1). He challenges multiple evidentiary
decisions made by the district court during trial, the
constitutionality of the aforementioned criminal statute
as applied to his case, and the term of his sentence. We
affirm the decision of the district court.
I. Background
Early in the morning of October 10, 2003, Randell D.
Thomas was involved in a shooting at 920 Park Avenue, in
Beloit, Wisconsin. The incident involved four individuals:
2 No. 04-2063
Thomas, his girlfriend Enjoli McAlister, McAlister’s cousin
Byron Stewart1, and Thomas’s friend Michael Brown. The
affair began with an argument between Thomas and
McAlister. During the argument, McAlister was phoned
by her cousin, Byron Stewart. Unfortunately, while talking
with McAlister, Stewart described Thomas with unkind
words and Thomas overheard the remark. Thomas took the
phone and briefly spoke with Stewart, proposing that the
two meet in front of McAlister’s apartment. Thomas then
called and invited his friend Michael Brown to join them.
Within minutes, Brown arrived on bicycle.
Shortly after Thomas and Brown met outside of
McAlister’s apartment, Stewart arrived in a green Dodge
Intrepid and parked in front of the building. When Stewart
got out of the vehicle, Thomas challenged him to a fistfight.
Stewart refused. Thomas then asked Brown to pass him a
gun that he was holding so they could leave. At that point
a struggle broke out; Stewart drew his own gun and opened
fire. Thomas retrieved the gun from Brown’s pocket and
returned fire while Stewart fled.
In the aftermath of the gunfight, Stewart had fled the
scene, Brown lay shot at the end of the Intrepid, and
Thomas, shot in his right hand and rear left shoulder, was
calling for help. Portions of these events were witnessed
by numerous people, including McAlister and Raymond
Stewart (Byron’s uncle). The latter half of the incident was
narrated in its entirety by an anonymous 911 caller.
In response to an emergency dispatch, Officer John
Fahrney of the Beloit Police Department arrived at the
scene within minutes of the shooting. He was flagged down
by an excited Thomas, who asked if Fahrney was respond-
ing to his call. Fahrney then saw Brown lying prone behind
1
Stewart is also known as Byron Hendricks; to connote the
family relation with other witnesses we use Stewart.
No. 04-2063 3
the Intrepid. After surveying the scene, he interviewed
McAlister and then escorted Thomas to the hospital. At the
hospital, Thomas informed Officer Fahrney that he had
argued with McAlister’s cousin, who had pulled a revolver
on him and Brown. Because Thomas could not remember
Stewart’s name, Officer Fahrney asked if he would be able
to identify the shooter in a photographic lineup. Thomas
demurred, stating that he would prefer to settle the matter
by trading “bullet for bullet.” Trial Tr. vol.1, 147, Feb. 9,
2004.
When Beloit Police officers searched the crime scene they
recovered three .380 caliber bullet casings that were not
tarnished, scuffed, or crushed; one from under the Intrepid
and two in the grass adjacent to the vehicle. Additionally,
the officers found a bullet hole in the garage door, bullet
fragments inside the building garage, and what could
possibly have been a “bullet impact” mark on the sidewalk.
Trial Tr. vol.1, 166, Feb. 9, 2004. There was also blood
in front of the apartment building, in the car, on the road
near the curb, on the driveway, and just beyond the drive-
way. They did not find any firearms or bullets.
On November 20, 2003, a grand jury returned a one-count
indictment against Thomas for the unlawful possession of
ammunition by a convicted felon, 18 U.S.C. § 922(g)(1). He
was arraigned on November 21, 2003.
On February 4, 2004, in preparation for trial, the govern-
ment filed a motion in limine to have an audiotape of the
911 call admitted into evidence. The recording was relevant
because the caller had been located, but told the police that
she no longer remembered seeing a gun or telling the
emergency dispatcher that she had seen a gun. Thomas
objected to the evidence on Sixth Amendment grounds,
arguing that admission of the recording would violate his
right of confrontation. The government offered the testi-
mony of the detective who had spoken with the caller and
4 No. 04-2063
the district court admitted the tape as both an excited
utterance and a present-sense impression.
During the jury trial that began on February 9, 2004, the
aforementioned facts were introduced through the testi-
mony of a number of witnesses. Enjoli McAlister testified
that initially Thomas did not have a gun, but when he
called Brown she overheard him say “bring both of them.”
Trial Tr. vol.1, 92, Feb. 9, 2004. Later, when Stewart
arrived, she saw Thomas remove a silver gun from his
pocket which he gave to Brown to hold. After Stewart
declined to fight, Thomas instructed Brown to return the
gun. It was then that the brief struggle occurred, after
which Stewart opened fire with another weapon. When
Stewart ran out of ammunition, Thomas reached into
Brown’s pocket and retrieved the gun. He the returned
fire from behind the Intrepid while Stewart fled the scene.
Following McAlister’s testimony, the government played
the tape-recording of the emergency call made at 3:55 a.m.
on the morning of October 10, 2003. During the course of
the three minute and fifty-three second recording, the caller
reported that someone had been shot outside of her apart-
ment, and that “. . . the guy who shot him is still out there.”
Trial Exh. 1. The emergency operator then asked a series of
questions about the facts of the situation and the caller
narrated what she was seeing as it happened. Initially, she
noted that she hadn’t seen the shooting, but that she had
seen “. . . a gun, . . . a handgun.” Id. Prompted by the
operator, she described the two men outside of her apart-
ment, both black males. One was walking and running
around, and the other lay shot on the ground. Midway
through the call, with voices audible in the background, the
following exchange took place:
911 Operator: Is that him in that background that’s
talkin’?
No. 04-2063 5
Complainant: Well now I don’t know if that’s who
shot him. Maybe the person who shot him ran and
that’s who he was shottin’ at.
911 Operator: But you’re not really sure if he’s there
or not . . .
Complainant: I’m not, I’m not sure . . . I think the
dude who shot him, now, ran, and that’s why he was
shootin’. His friend’s shot on the ground and he’s askin’
him: where is he shot at? And he’s not talkin’. But there
is somebody shot outside, somebody needs to be sent
over here, and there’s somebody runnin’ around with a
gun, somewhere.” Id.
The caller narrated the actions of the man standing in
the street until the police arrived. Towards the end of the
call, the dispatcher attempted to get the caller’s name, but
she refused, citing a concern for her personal safety. She
was later identified and questioned by the police, but did
not remember seeing a gun or ever having told the dis-
patcher that she had seen one.
The government also called Raymond Stewart and Travis
Ryan to testify. Raymond Stewart testified to having
witnessed the end of the incident. He told the jury that
the sound of gunfire woke him and so he went to his
window and saw an individual, too small to be his nephew,
running down the street firing a gun with his right hand.
This man then returned to the Intrepid to check on a second
person lying down behind the car. Travis Ryan had shared
a cellblock with Thomas at the Dane County jail before
Thomas’s trial. Ryan testified that Thomas had admitted to
possessing and firing a .380 caliber gun the night of the
shooting, and that he stashed it behind the building after
the fight. Ryan also stated that Thomas told him he was
always “strapped.” Trial Tr. vol.1, 186, Feb. 9, 2004.
As their last witness, the government called Special
Agent William Baudhuin, with the Bureau of Alcohol,
6 No. 04-2063
Tobacco, Firearms, and Explosives. Baudhuin testified
that the shells found at the crime scene were made by
Companhia Brasileira Cartuchos, and imported to the
United States by Magtech, a company in Centerville,
Minnesota.
Thomas took the stand in his defense. He testified that
after Stewart refused to fight, he and Brown started to walk
away. Stewart, he said, then attempted to rob them at
gunpoint. When they tried to fight off the robbery, Stewart
shot them both and fled the scene. Thomas testified that he
then walked around the front of the building repeatedly
calling for help, while bleeding from his hand. He then
checked on Brown and kicked in the window of the Intrepid
to draw attention to himself. Once in the vehicle, he
removed a cell phone and attempted to call the police.
Ultimately, he stepped into the street and hailed Officer
Fahrney’s patrol vehicle.
Thomas denied possessing a gun or ammunition that
night, or having told Brown to bring “both of them.” He also
denied telling Travis Ryan that he always had a gun, that
he had one on the night of the shooting, or that he ran from
the front of the building to hide the gun. He explained that
he and Ryan spent some time working on his case while in
prison, and that Ryan must have fabricated the information
after reading his file. Finally, Thomas disputed McAlister’s
claim that he drew a gun from Brown’s pocket, and ex-
plained that he was trying to find a cellular phone.
The prosecutor attacked Thomas’s testimony and credibil-
ity on cross-examination. Under questioning, he admitted
to having repeatedly lied to police officers during prior
arrests and to having pleaded guilty under assumed names.
He also denied telling Officer Fahrney that Stewart’s gun
was a revolver or that he wanted to trade a bullet for a
bullet. The prosecutor pressed this point and questioned
Thomas on the factual conflict between his testimony and
No. 04-2063 7
that of McAlister and Fahrney. The following exchange then
took place:
Government: So your testimony as you sit here today is
that Enjoli McAlister is a liar?
Defendant: Of course.
Government: And that Officer Fahrney is a liar?
Defendant: He left out details. I wouldn’t exactly call
him a liar. He’s a pretty nice guy.”
Trial Tr. vol.1, 256-57, Feb. 9, 2004.
After a little more than three hours of deliberation, the
jury found Thomas guilty.
Thomas was sentenced to the statutory maximum of 120
months in prison, followed by three years of supervised
release, and a $100 special assessment. The sentence
was imposed after the district court adopted the information
presented in the Pre-Sentence Report (PSR). Based upon
these facts, the district court found Thomas’s base offense
level to be 24, his total offense level to be 30, and his
criminal history category to be V. This calculation yielded
a Guideline range of 150 to 188 months. In his final com-
ment on the sentence, Judge Shabaz stated: “Does the
criminal history adequately represent Category V? No, it
doesn’t. In any other case the Court would increase the
criminal history category to VI, but because of the limit of
120 months there’s really no reason at this point to do so.”
Sentencing Hr’g Tr. 10, Apr. 20, 2004. The judgment was
docketed on April 20, 2004.
Thomas filed a timely notice of appeal on April 22, 2004,
pursuant to 28 U.S.C. §§ 1291, 1294, and 18 U.S.C.
§ 3742(a)(1)-(2). In doing so, he raised the following issues:
(1) the government’s use of the tape-recorded emergency
call at trial violated his right to confrontation; (2) the
district court erred in preventing Officer Fahrney from
8 No. 04-2063
testifying regarding Thomas’s statement at the scene of the
crime; (3) the government improperly questioned the
defendant at trial; (4) that 18 U.S.C. § 922(g)(1) is unconsti-
tutional as applied to the instant facts; and (5) that because
his sentence was determined under a mandatory scheme, it
should be remanded for further consideration.
II. Analysis
A. Defendant’s Right to Confrontation
Thomas first argues that the use of the tape-recorded 911
call at his trial was a violation of his Sixth Amendment
right to confrontation. We review evidentiary rulings that
affect this right de novo. United States v. Gilbertson, 435
F.3d 790, 794-95 (7th Cir. 2006).
The Sixth Amendment to our Constitution dictates that
in all “criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
U.S. CONST. amend. VI; Pointer v. Texas, 380 U.S. 400, 403
(1965) (applying the Sixth Amendment to the States); see
Bintz v. Bertrand, 403 F.3d 859, 865-67 (7th Cir. 2005)
(reviewing the Supreme Court’s evolving interpretation
of the Confrontation Clause). But this simple text leaves
room for interpretation regarding who, exactly, bears
witness. In Crawford v. Washington, the Supreme Court
held that the right to confrontation bars the “admission of
testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examina-
tion.” 541 U.S. 36, 53-54 (2004). The Court, however,
declined to offer a comprehensive definition of “testimonial,”
and wrote that, at a minimum, the term applies to “prior
testimony at a preliminary hearing, before a grand jury, or
at a former trial; and to police interrogations.” Id. at 68.
In the recently decided Davis v. Washington, however, the
Supreme Court provided a working test to distin-
No. 04-2063 9
guish testimonial from nontestimonial statements in the
limited context of police interrogations. Davis v. Washing-
ton, 547 U.S. ___, *7 (U.S. June 19, 2006). In Davis, the
Court held:
Statements are nontestimonial when made in the
course of police interrogation under circumstances
objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution. Id.
When viewing the facts in light of Davis, we find that
the anonymous caller’s statement to the 911 operator
was nontestimonial. In Davis, the caller contacted the police
after being attacked, but while the defendant was fleeing
the scene. Id. at *1-3. There the Supreme Court stressed
that, despite the immediate attack being over, the caller
“was speaking about events as they were actually happen-
ing, rather than ‘describ[ing] past events.’ ” Id. at *12
(citation omitted) (emphasis in original). Similarly, the
caller here described an emergency as it happened. First,
she directed the operator’s attention to Brown’s condition,
stating “[t]here’s a dude that just got shot . . .”, and “. . . the
guy who shot him is still out there.” Trial Exh. 1. Later in
the call, she reiterated her concern that “. . . [t]here
is somebody shot outside, somebody needs to be sent
over here, and there’s somebody runnin’ around with a gun,
somewhere.” Id. Any reasonable listener would know from
this exchange that the operator and caller were dealing
with an ongoing emergency, the resolution of which was
paramount in the operator’s interrogation. This fact is
evidenced by the operator’s repeatedly questioning the
caller to determine who had the gun and where Brown lay
injured. Further, the caller ended the conversation immedi-
10 No. 04-2063
ately upon the arrival of the police, indicating a level of
interrogation that was significantly less formal than the
testimonial statement in Crawford. 541 U.S. at 38-41.
Because the tape-recording of the call is nontestimonial, it
does not implicate Thomas’s right to confrontation.
Where a hearsay statement is found to be nontestimonial,
we continue to evaluate the declaration under Ohio v.
Roberts, 448 U.S. 56 (1980).2 See Crawford, 541 U.S. at 68
(reasoning that “[w]here nontestimonial hearsay is at issue,
it is wholly consistent with the Framers’ design to afford
the States flexibility in their development of hearsay
law—as does Roberts, and as would an approach that
exempted such statements from Confrontation Clause
scrutiny altogether”); see also United States v. Danford, 435
F.3d 682, 687 (7th Cir. 2005). Roberts held that proffered
hearsay may be admitted where it “falls within a firmly
rooted hearsay exception.” 448 U.S. at 66; see White v.
Illinois, 502 U.S. 346, 356-57 (1992). Because of the nature
of the call and conversation, we hold that the district court
did not err in admitting the tape-recording under Federal
Rules of Evidence 803(1), present sense impression, and
803(2), excited utterance.
B. Defendant’s Statement at the Scene of the
Crime
Thomas next argues that the district court erred in
excluding his statements made to Officer Fahrney when the
2
We recognize that Crawford v. Washington, 541 U.S. at 60,
overruled, in part, Ohio v. Roberts, and that Davis v. Washington
reaffirmed this fact. Davis, *10, n.4, *19. While at first glance,
Davis appears to speak of Roberts being overruled in general, a
closer reading reveals that the discussion of Roberts occurs strictly
within the context of statements implicating the Confrontation
Clause. Id. Where the Court addresses nontestimonial statements
such language is conspicuously absent.
No. 04-2063 11
police first arrived at the scene of the crime. We review the
trial court’s refusal to admit evidence for abuse of discre-
tion. United States v. Cash, 394 F.3d 560, 564 (7th Cir.
2005). An abuse of discretion is found only where no
reasonable person would agree with the decision made by
the trial court. Id.
During the cross-examination of Officer Fahrney, defense
counsel posed questions designed to elicit the remarks
Thomas made when Fahrney first arrived at the scene of
the shooting. Counsel queried if Thomas had asked if
Fahrney was responding to his call, or told Fahrney his
cousin had been shot. The government objected, citing
hearsay, and the district court sustained the objection.
These statements were not hearsay. Federal Rule of
Evidence 801(c) defines hearsay as “a statement, other than
one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted.” Thomas’s first remark was not a statement, it
was a question. FED. R. EVID. 801(a). His second remark,
regarding his cousin having been shot, was not offered to
prove the truth of the matter. Counsel did not ask Fahrney
if Thomas had mentioned this because there was a doubt
about Brown having been shot. The question was posed at
trial because counsel wanted to elicit evidence that Thomas
was concerned for Brown’s health. Failure to allow this
testimony at trial was an abuse of the district court’s
discretion.
Even if the statement had been admitted, nothing would
have come of it. Reversal, the relief which Thomas seeks, is
not required where the error is harmless. United States v.
Moore, 115 F.3d 1348, 1358 (7th Cir. 1997). As defined by
Federal Rule of Criminal Procedure 52(a), “[a]ny error,
defect, irregularity, or variance that does not affect substan-
tial rights must be disregarded.” Here, evidence of Thomas’s
remarks that he had called for help, and his overall concern
for the health of Brown, was admitted on three other
12 No. 04-2063
occasions during trial. The jury was well aware of these
statements, and convicted Thomas nonetheless. We see no
reasonable possibility that the exclusion of Fahrney’s
version of the statement had “a substantial and injurious
effect or influence on the jury’s verdict.” United States v.
Douglas, 408 F.3d 922, 929 (7th Cir. 2005).
C. Prosecution’s Line of Questioning
Thomas next seeks reversal on the basis of the prosecu-
tion’s questioning during his cross-examination and com-
ments made during closing arguments. Because he did not
object at trial, we review this claim for plain error only.
FED. R. CRIM. PRO. 52(b); United States v. Olano, 507 U.S.
725, 732-34 (1993). To garner relief, Thomas must show
that (1) there was an error; (2) the error was plain, clear, or
obvious; and (3) the error affected his substantial rights,
meaning it must have affected the outcome of the district
court proceedings. Id.; United States v. Walker, 447 F.3d
999, 1005 (7th Cir. 2006). In considering this third factor,
we emphasize the curative effect of jury instructions and
“the weight of the evidence of guilt contained in the entire
record.” United States v. McKee, 389 F.3d 697, 699 (7th Cir.
2004).
At the close of Thomas’s cross-examination, the prosecu-
tor questioned him on the disparities between his testimony
and that of Officer Fahrney and Enjoli McAlister. Thomas
denied the truth of their statements. The prosecutor
pressed on, asking if it was Thomas’s testimony that
Fahrney and McAlister were liars. Thomas responded
affirmatively as to McAlister, but distinguished Fahrney.
Fahrney, he said, “. . . left out details. I wouldn’t exactly call
him a liar. He’s a pretty nice guy.” Trial Tr. vol. 1, 256-57,
Feb. 9, 2004. Later, during closing arguments, the prosecu-
tor returned to this exchange and attempted to discredit
Thomas by telling the jury he had called Fahrney and
No. 04-2063 13
McAlister liars. Trial Tr. vol. 2, 21, Feb. 10, 2004. Thomas
argues that these statements amounted to plain error, and
that together they were sufficient to influence the jury’s
verdict.
Because the evaluation of witness credibility is the
province of the jury, “ ‘it is improper to ask one witness to
comment on the veracity of the testimony of another wit-
ness.’ ” McKee, 389 F.3d, at 699 (citing United States v.
Freitag, 230 F.3d 1019, 1024 (7th Cir. 2000)). The govern-
ment acknowledges as much, and concedes that the
initial line of questioning was in error. But we must
separate the questions asked during cross-examination from
the comments made during closing argument. We find the
questions were improper, and the error on this point plain.
Regarding the comments at closing argument, however, we
note that a prosecutor may “properly comment on the
credibility of witnesses as long as the comment reflects
reasonable inferences drawn from the evidence presented at
trial rather than personal opinion.” Id. (citing United States
v. Morgan, 113 F.3d 85, 89 (7th Cir. 1997)). We are left
then, with the implication of this error for Thomas’s
substantial rights.
Similar to McKee, the curative effect of the jury instruc-
tions and the weight of the evidence in the record indicate
that the comments were not sufficient to influence the jury’s
verdict. At the end of closing arguments, the district court
instructed the jury as follows: “You are to decide whether
the testimony of each of the witnesses is truthful and
accurate in part, in whole, or not at all, as well as what
weight, if any, you give to the testimony of each witness.”
Trial Tr. vol. 2, 44, Feb. 10, 2004. Additionally, this instruc-
tion was followed by a reminder to evaluate the defendant’s
testimony “in the same way as you would judge the testi-
mony of any other witness” and that “[a]ny inference you
make must be reasonable and must be based on the evi-
dence in the case.” Id. at 45.
14 No. 04-2063
Further, the cumulative effect of the additional evidence
in the record created an inculpatory mass not likely swayed
by this limited error. Of particular importance were the
statements made during the 911 call, which, when paired
with the testimony of McAlister and Fahrney, painted a
complete picture of that night’s events. First, McAlister
testified that Thomas retrieved the silver gun from Brown’s
pocket when Stewart ran out of ammunition. As Stewart
fled, Thomas returned fire while standing at the rear of the
Intrepid. Second, when talking to the emergency operator,
the caller described two separate shooters, one of whom ran
around the front of the building, but then returned to his
wounded friend who lay at the rear of the Intrepid, where
he stayed until the police arrived. Finally, Officer Fahrney
testified that he arrived at the crime scene to find Thomas
standing near the body of Brown, who lay at the end of the
Intrepid. These three stories, provided by wholly unrelated
witnesses, neatly mesh together to create a deeply persua-
sive time line of events for that unfortunate morning.
Despite the error at trial, we deny Thomas relief on this
claim.
D. Constitutionality of 18 U.S.C. § 922(g)(1)
Thomas briefly challenges the constitutionality of 18
U.S.C. § 922(g)(1) as applied to his “purely intrastate”
possession of ammunition. Plaintiff’s Br. 48. Because he
failed to raise this argument at trial, we review his claim
for plain error. United States v. Olano, 507 U.S. 725, 732-34
(1993).
Section 922(g) does not require the government to prove
Thomas was responsible for the interstate transportation of
the ammunition he was found to possess. It requires,
instead, a showing that the possession of the ammunition
was “in or affecting commerce.” Id. He argues that this
lesser burden is an unconstitutional exercise of the Com-
No. 04-2063 15
merce Clause. U.S. CONST. art. I, § 8, cl. 3. But this argu-
ment fails. As we have held before on multiple occasions,
this jurisdictional element of § 922(g) satisfies the require-
ments of our Commerce Clause jurisprudence. See United
States v. Vallejo, 373 F.3d 855, 860-61 (7th Cir. 2004)
(remanded on separate grounds); United States v. Keller,
376 F.3d 713, 716-17 (7th Cir. 2004) (remanded on separate
grounds); United States v. Lemons, 302 F.3d 769, 771-73
(7th Cir. 2002); United States v. Mitchell, 299 F.3d 632, 634-
35 (7th Cir. 2002); United States v. Bell, 70 F.3d 495, 497-98
(7th Cir. 1995). Until the Supreme Court provides further
guidance on the matter, our decisions stand.
E. Sentencing
Lastly, Thomas challenges the term of his sentence. He
argues that the district court erred in finding certain
aggravating factors by a preponderance of the evidence
only, and that these findings were then imposed under a
mandatory sentencing scheme contrary to United States v.
Booker, 543 U.S. 220 (2005). He did not make these argu-
ments at trial, however, so we review his claims for plain
error. United States v. Paladino, 401 F.3d 471, 481 (7th Cir.
2005). Thomas bears the burden of demonstrating this plain
error under Federal Rule of Criminal Procedure 52(b). See
Olano, 507 U.S. at 732-34; United States v. Lee, 399 F.3d
864, 866 (7th Cir. 2005).
For Thomas to prove plain error, he must, among other
things, establish that the error violated his substantial
rights–“which is to say that it made the defendant worse
off.” Lee, 399 F.3d, at 866. This he cannot do. At the sen-
tencing hearing, the district court adopted the information
provided in the PSR. Based upon the jury’s verdict and his
prior controlled substance offenses, Thomas’s base offense
level was 24. The district court, however, found that
Thomas possessed the ammunition in connection with
16 No. 04-2063
another felony offense (the gunfight) and that he obstructed
justice by committing perjury during the trial. With these
findings, the judge increased Thomas’s offense level to 30.
When the court paired the level with his criminal history
category of V, it yielded a Guideline range of 151 to 188
months. But Judge Shabaz thought this wasn’t high
enough. He explicitly stated that he would prefer to in-
crease Thomas’s criminal history category to VI, but that
the 120 month statutory maximum made the increase
irrelevant.
As we wrote in Lee, where the district court judge ex-
presses a preference to give a higher sentence and the
actual sentence was well below the calculated Guideline
range, the defendant fails to show that the error affected his
substantial rights. Lee, 399 F.3d, at 867. Given the district
court’s comments on the record, and the § 922(g) maximum
sentence, we can be sure that Thomas would be in no better
situation were we to remand his case for resentencing.
Therefore, his substantial rights were not affected and his
claim on this point fails.
III. Conclusion
The defendant’s conviction is AFFIRMED.
No. 04-2063 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-7-06