United States v. James Rogers ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2638
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES ROGERS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cr-00308 — Jane Magnus-Stinson, Judge.
____________________
ARGUED MAY 25, 2022 — DECIDED AUGUST 12, 2022
____________________
Before RIPPLE, ROVNER, and JACKSON-AKIWUMI, Circuit
Judges.
RIPPLE, Circuit Judge. Federal law prohibits James Rogers
from possessing any firearms because of his previous felony
convictions. Nevertheless, based on an investigation in July of
2019, law enforcement concluded that he had enlisted an ac-
complice to purchase firearms for him. A jury subsequently
convicted him of two counts of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g). The district court
2 No. 21-2638
then sentenced him to 70 months’ imprisonment. For the rea-
sons set forth in this opinion, we now affirm the judgment of
the district court.
I
BACKGROUND
On July 12, 2019, Mr. Rogers, along with a friend, A.W.,
went to the Rural King store in Bedford, Indiana. The store’s
video surveillance system recorded Mr. Rogers as he handled
multiple firearms, including a Mossberg shotgun. The video
recorded his holding the Mossberg for less than a minute be-
fore handing it back to the Rural King sales employee. The
employee then placed it under the counter. A few minutes
later, A.W. went to the sales counter, indicated that she
wanted to purchase the Mossberg, provided her ID, and filled
out a Form 4473. The Rural King manager came from the back
of the store, carrying a box with a Mossberg shotgun in it.
A.W. paid for the shotgun, and the manager walked both her
and Mr. Rogers to the parking lot.
One week later, Mr. Rogers and A.W. went to another Ru-
ral King in Bloomington, Indiana. Again, Mr. Rogers ap-
proached the gun counter by himself and inspected several
firearms, including a Sig Sauer 400 rifle. A.W. later joined him
at the gun counter and purchased the rifle. The manager then
escorted them out of the store.
Following these purchases, law enforcement officers re-
ceived a tip that Mr. Rogers and A.W. were purchasing fire-
arms with gift cards obtained from stolen merchandise that
had been returned fraudulently to the store. While investigat-
ing the theft, the officers reviewed the security footage of the
sales of the two firearms at the Rural King stores and
No. 21-2638 3
concluded that A.W. was purchasing the firearms for
Mr. Rogers. A Bloomington Police officer interviewed A.W.
and Mr. Rogers. During her interview, A.W. denied knowing
the location of the Sig Sauer rifle. But Mr. Rogers, when inter-
viewed by the same officer, told him that the rifle was under
the couch in A.W.’s living room and noted that it was still in-
side the box. Bloomington police officers recovered the Sig
Sauer rifle from that location. Officers also recovered the
Mossberg shotgun from A.W.’s residence that same day.
On September 17, 2019, a grand jury charged Mr. Rogers
with five counts: one count of conspiracy, two counts of aid-
ing and abetting the making of a false statement to a licensed
firearms dealer, and two counts of being a felon in possession
of a firearm. The Government then filed a motion to dismiss
without prejudice the first three counts of the indictment, and
the district court granted the motion. Consequently, only the
two counts of felon in possession were presented to the jury
at trial. Mr. Rogers’s first trial occurred in November 2020 but
ended in a mistrial when the jury could not reach a unani-
mous verdict.
A second jury trial was held on July 13, 2021. In presenting
its case, the Government first assumed that Count I (the Moss-
berg shotgun) charged Mr. Rogers with possessing the shot-
gun he was recorded holding in the surveillance video at the
Bedford Rural King. But when Mr. Rogers’s attorney cross-
examined the store associate who had sold the Mossberg shot-
gun to A.W., it became evident that two separate Mossberg
shotguns were involved in the Bedford incident: The first
Mossberg was the one that Mr. Rogers personally handled;
the second Mossberg was the one retrieved by the manager
from the back of the store and sold to A.W. A law enforcement
4 No. 21-2638
witness admitted at trial that they were not aware that the in-
cident had involved two different Mossberg shotguns in the
1
store.
At the close of the Government’s case, Mr. Rogers moved
2
for the dismissal of Count I of the indictment under Rule 29.
Mr. Rogers submitted that he, and the jury, were entitled to
know whether he was being charged with possessing the un-
purchased firearm that he had held in the store or the pur-
chased firearm that left the store (identified as Government
Exhibit 2 at trial). He expressed the concern that some jurors
might convict him for solely possessing the gun that he had
held in the store while others might convict him of jointly pos-
sessing the gun that was purchased. The Government simply
responded that the indictment charged Mr. Rogers with pos-
sessing “a Mossberg shotgun,” which was still what the evi-
3
dence demonstrated.
After a colloquy with counsel, the district court deter-
mined that defense counsel had raised two separate concerns.
Counsel first suggested that the indictment was invalid be-
cause it was impossible to ascertain whether the grand jury
intended to accuse Mr. Rogers of possessing the gun that he
had handled at the counter or the gun purchased by A.W.
1 R.121 at 121, 125.
2 “A trial judge, upon a defendant’s motion or on the judge’s own initia-
tive, ‘must enter a judgment of acquittal of any offense for which the evi-
dence is insufficient to sustain a conviction,’ either after the government
has closed its evidence or after a jury has rendered a verdict or been dis-
charged.” United States v. Garcia, 919 F.3d 489, 496 (7th Cir. 2019) (quoting
Fed. R. Crim. P. 29(a)).
3 R.121 at 138; see also R.64.
No. 21-2638 5
shortly thereafter. Counsel also submitted that the indictment
deprived him of due process of law because he had no notice
of which alleged firearm possession he had to defend against.
The court addressed each of these arguments. With re-
spect to the first argument, the court said that it was clear that
the grand jury intended to indict Mr. Rogers with possession
of the gun purchased by A.W. The court noted that, given the
charges handed down by the grand jury—“all of that conspir-
acy and setting up the straw man”—it was clear that the
grand jury focused on a theory of joint possession of the pur-
chased Mossberg. The district judge explained “these guns
were purchased with the female companion as a straw pur-
chaser, and I think the Grand Jury, given that they did indict
on those theories, kind of necessarily found joint possession,
4
it seems to me.”
The district court then turned to the risk that Mr. Rogers
had not been given adequate notice that the Government in-
tended to proceed on the basis of the purchased gun. Charac-
5
terizing the problem as one of duplicity, it stated that, “it is
the joining of two or more offenses in a single count because
clearly here, the possession of the purchased Mossberg is dif-
6
ferent than the possession of the unpurchased Mossberg.” In
order to avoid any unfairness from lack of notice, the court
4 R.121 at 146–47.
5 Although, as we discuss later on, the district court’s characterization of
the situation before it as one of duplicity is questionable, at least insofar as
it was based on the existence of two guns rather than one, it certainly did
not cause reversible error.
6 Id. at 144.
6 No. 21-2638
then required the Government to choose which firearm it was
going to prove in front of the jury: “[y]ou have to pick—less
than picking a gun—you have to pick a possession that you’re
charging; and whether it is the one in the store or the joint
7
possession, that is your call.” The Government chose to
prove, under a theory of joint possession, that Mr. Rogers pos-
sessed the Mossberg purchased by A.W. In due course, the
district court instructed the jury that in order to find Mr. Rog-
ers guilty of Count 1, it had to find he “knowingly possessed
a firearm; specifically, the firearm that is Exhibit 2,” which
8
was the Mossberg purchased by A.W.
Following the rendition of the jury’s verdict, the probation
office prepared a Presentence Report (“PSR”) for the sentenc-
ing hearing. That report recommended a base offense level of
20 under U.S.S.G. § 2K2.1(a)(4)(B) because Count II (the Sig
Sauer count) involved a firearm capable of accepting a high-
9
capacity magazine. Mr. Rogers objected to the recommenda-
tion, stating that he did “not believe a high capacity magazine
10
[was] involved in his case.” In his view, the jury’s verdict
was based on “what happened at the gun counter, which did
7 Id. at 145.
8 Id. at 159.
9 “(a) Base Offense Level (Apply the Greatest): (4) 20, if— (B) the (i) offense
involved a (I) semiautomatic firearm that is capable of accepting a large
capacity magazine; or (II) firearm that is described in 26 U.S.C. § 5845(a);
and (ii) defendant (I) was a prohibited person at the time the defendant
committed the instant offense; (II) is convicted under 18 U.S.C. § 922(d);
or (III) is convicted under 18 U.S.C. § 922(a)(6) or § 924(a)(1)(A) … .”
U.S.S.G. § 2K2.1(a)(4)(B).
10 R.106.
No. 21-2638 7
11
not include any kind of a magazine whatsoever.” He did not
believe that his base offense level should be increased by six
points because “someone else later came and purchased a gun
12
that did have a magazine on it.” The Government responded
that it presented evidence of joint possession of the Sig Sauer
rifle for Count II and noted that a case agent confirmed that it
was sold with a 30-round magazine. In its supplemental ad-
dendum to the PSR, the Probation Department also noted that
the purchase of the high-capacity magazine was confirmed by
the case agent.
The district court overruled Mr. Rogers’s objection. It saw
a clear connection between him and the Sig Sauer rifle, noting
that he had provided specific instructions to law enforcement
on where to find it and those instructions were correct. Thus,
the court found that he had jointly possessed the gun that was
purchased with a high-capacity magazine. Mr. Rogers was ul-
timately sentenced to 70 months’ imprisonment. Mr. Rogers
timely appealed his conviction and sentence.
11 R.125 at 7.
12 Id.
8 No. 21-2638
II
DISCUSSION
A.
1.
Focusing on the Mossberg count, Mr. Rogers now renews
his argument that a constructive amendment of his indict-
ment occurred at trial. Reminding us that “a defendant may
be tried for a felony only on the charges the grand jury ap-
proved, as it approved them, and no others,” United States v.
Leichtnam, 948 F.2d 370, 375 (7th Cir. 1991), he submits that
because the Government was unaware that two Mossberg
shotguns were involved in the incident, the grand jury must
have indicted him for the possession of the unpurchased Moss-
berg at the Bedford Rural King. The Government’s evidence
at trial, however, sought to prove his joint possession of the
purchased Mossberg. Thus, in Mr. Rogers’s view, the broad
language of the indictment, the evidence offered at trial, the
jury instructions, and the jury verdict form caused him to be
tried and convicted on a charge never sanctioned by the grand
jury.
The Government takes a different view. It responds that
the indictment charged Mr. Rogers with possessing “one
Mossberg shotgun” on or about July 12, 2019, and that lan-
guage naturally encompasses any form of possession of a
Mossberg shotgun. Thus, the Government contends that “[a]t
13
worst, this case involves a harmless variance.”
13 Appellee’s Br. 16.
No. 21-2638 9
“A constructive amendment to an indictment occurs when
either the government (usually during its presentation of evi-
dence and/or its argument), the court (usually through its in-
structions to the jury), or both, broadens the possible bases for
conviction beyond those presented by the grand jury.”
United States v. Cusimano, 148 F.3d 824, 829 (7th Cir. 1998) (ci-
tation omitted).
An indictment that is constructively amended at
trial violates the Constitution because the Fifth
Amendment requires an indictment of a grand
jury to guarantee that the allegations in the in-
dictment and the proof at trial “match in order
to insure that the defendant is not subject to a
second prosecution, and to give the defendant
reasonable notice so that he may prepare a de-
fense.”
United States v. Trennell, 290 F.3d 881, 888 (7th Cir. 2002) (quot-
ing United States v. Folks, 236 F.3d 384, 390 (7th Cir. 2001)).
Thus, the indictment may not be broadened so as to present
the trial jury with more or different offenses than what the
grand jury charged. See Leichtnam, 948 F.2d at 377.
There was no broadening of the indictment here. The
grand jury charged Mr. Rogers with possessing one Mossberg
shotgun. At trial, it became apparent that the Bedford incident
involved two Mossberg shotguns. Nevertheless, the record
simply does not support the conclusion that the evidence at
trial established a crime different from the one charged in his
indictment. The indictment broadly charged that Mr. Rogers
possessed a Mossberg gun in Bedford on a given date. The
trial focused solely on whether that allegation was proven.
10 No. 21-2638
Mr. Rogers does not contest that the gun that he person-
ally handled is within the ambit of the indictment. But, as the
district court noted, the grand jury alleged a conspiracy
charge, making it clear that it included within its allegation
Mr. Rogers’s constructive possession of the firearm finally
purchased by A.W. By requiring that the Government choose
between these two theories of possession, actual and con-
structive, the district court hardly expanded the scope of the
indictment. Indeed, it narrowed it.
Moreover, the facts at trial did not substantially vary from
the factual allegations in the indictment despite the revelation
of the second Mossberg shotgun. The indictment asserted,
and the evidence at trial showed, that: (1) Mr. Rogers had pre-
vious felony convictions; and (2) he possessed a Mossberg
shotgun both in the store and after leaving the store. Mr. Rog-
ers knew the material elements of the crime and that the gov-
ernment would try to establish that he possessed a Mossberg
shotgun. The instructions given to the jury adequately ap-
prised the members of the task before them. Although
Mr. Rogers now suggests that other instructions were neces-
sary or preferable, he never apprised the district court of his
views, and, consequently, he waived his objections.
We previously have stated that “[t]he sufficiency of an in-
dictment should be determined by practical rather than tech-
nical considerations.” Collins v. Markley, 346 F.2d 230, 232 (7th
Cir. 1965) (en banc) (noting that “every essential ingredient of
the offense was charged” and the defendant “was sufficiently
apprised of the nature of the charges against him”). Here,
Mr. Rogers’s offense under Count 1 was the possession of
“any firearm” in violation of § 922(g). The jury unanimously
agreed that he was a felon in possession of “any firearm” after
No. 21-2638 11
the district court instructed the jurors to consider the pur-
chased Mossberg shotgun for Count 1. The district court’s in-
structions obviated any question about adequate notice.
2.
Despite the district court’s ruling, Mr. Rogers continues to
maintain that the Mossberg Count is duplicitous. A charged
count is “duplicitous if it ‘charges two or more distinct of-
fenses within the count.’” United States v. O’Brien, 953 F.3d
449, 454 (7th Cir. 2020) (quoting United States v. Miller,
883 F.3d 998, 1003 (7th Cir. 2018)). “However, an indictment
charging multiple acts in the same count, each of which could
be charged as a separate offense, may not be duplicitous
where these acts comprise a continuing course of conduct that
constitutes a single offense.” United States v. Buchmeier,
255 F.3d 415, 421 (7th Cir. 2001).
At the outset, the Government contends that Mr. Rogers
waived this argument because he was aware of the existence
of the two guns prior to trial. “Rule 12(b)(3)(B)(i) of the Fed-
eral Rules of Criminal Procedure provides that any defect in
the indictment—including ‘joining two or more offenses in
the same count (duplicity)’—that can be raised by pretrial mo-
tion must be so raised,” and that failure to raise the issue be-
fore trial forfeits it unless there is “good cause” for the omis-
sion. United States v. Nixon, 901 F.3d 918, 920–21 (7th Cir. 2018)
(citation omitted). Requiring such an objection before trial en-
courages the parties to brief the issue carefully, “rather than
address[ing] a complex legal issue on the fly during a trial. It
prevents game playing.” Id. at 921. “If the indictment con-
fused the defendant, the proper time to raise that objection
was before trial, allowing the court an opportunity to correct
the error and allowing the government to seek a superseding
12 No. 21-2638
indictment.” United States v. Davis, 471 F.3d 783, 791 (7th Cir.
2006).
Mr. Rogers failed to raise the issue before trial despite his
knowledge of the second Mossberg shotgun, and he even so-
licited the information from a witness at trial. Thus, he was
fully aware there were two different Mossberg shotguns in-
volved and was aware of the risk of a duplicitous charge. Be-
cause he failed to raise an objection before the district court
prior to trial, under usual circumstances, we would hold this
argument waived. Here, however, the district court, in ad-
dressing Mr. Rogers’s constructive amendment argument,
characterized the situation before it as a duplicity issue and
resolved it on that basis. Under these circumstances, we are
constrained to address it.
Turning to the merits, Mr. Rogers contends that his sole
possession of the unpurchased Mossberg shotgun is a sepa-
rate and distinct offense from the joint possession of the pur-
chased Mossberg. The Government responds that Mr. Rog-
ers’s “entire conduct in relation to a Mossberg shotgun on
July 12, 2019, was the basis of the charge” and that it “was all
14
a single course of conduct.” “The fact that there was one
Mossberg shotgun in the display and another that was pur-
15
chased ultimately was not an essential part of the charge.”
In determining whether an indictment is fatally duplic-
itous, a court must determine whether the indictment gives
the defendant ample notice of the allegation against which he
must defend and whether the record produced in the
14 Appellee’s Br. 22.
15 Id.No. 21-2638 13
disposition of the case will protect the defendant adequately
from double jeopardy. See United States v. Berardi, 675 F.2d
894, 899 (7th Cir. 1982) (“The dangers posed by a duplicitous
indictment include … the defendant may not be adequately
notified of the charges against him, that he may be subjected
to double jeopardy, that he may be prejudiced by evidentiary
rulings at trial, and that he may be convicted by a less than
unanimous verdict.”).
After the ruling of the district court, there can be no ques-
tion about the adequacy of the notice afforded Mr. Rogers. Be-
cause the evidence at trial showed that there were two differ-
ent Mossberg shotguns, the district judge perceived a risk of
confusion and cured any error that may have come from it.
The final jury instructions told the jury to determine whether
“[t]he defendant knowingly possessed a firearm, specifically
16
the firearm that is Exhibit 2.” Thus, the jury instruction nar-
rowed the bases of conviction to the exact Mossberg shotgun
the jury was to consider in deliberations. Cf. United States v.
Haldorson, 941 F.3d 284, 297 (7th Cir. 2019) (rejecting a con-
structive amendment challenge where “[t]he jury instruction
was tailored to the specifics of the indictment and did not per-
mit the jury to convict [the defendant] based on non-indicted
[firearms]”). Because the district judge unambiguously in-
structed the jury that it had to find Mr. Rogers possessed the
purchased Mossberg shotgun (Exhibit 2), the introduction of
the unpurchased Mossberg shotgun in the video surveillance
footage “did not afford the jury a broader basis on which to
convict [Mr. Rogers] than the indictment allowed.”
United States v. Mitchell, 64 F.3d 1105, 1112 (7th Cir. 1995). The
16 R.97-3 at 18.
14 No. 21-2638
record also makes clear that Mr. Rogers had adequate notice
of the allegation against which he had to defend. Cf.
United States v. Ratliff–White, 493 F.3d 812, 823 (7th Cir. 2007)
(finding a harmless variance where the defendant was not de-
prived of an adequate opportunity to prepare a defense and
was not exposed to a double jeopardy risk); United States v.
Kuna, 760 F.2d 813, 819 (7th Cir. 1985) (same).
Nor do we believe that that Mr. Rogers faces a realistic
possibility of double jeopardy. The courts of appeals have
held that the unit of prosecution for a violation of 18 U.S.C.
§ 922(g) is “each transaction or acquisition by which he at-
tempts to arm himself unlawfully.” Buchmeier, 255 F.3d at422–23. Here the Government charged broadly that Mr. Rog-
ers had possessed a single Mossberg gun. It made no attempt
to maintain that the possession of the display case gun was an
offense different from the constructive possession of the sub-
stituted item purchased by A.W. on his behalf. Indeed, on ap-
peal, it admits that the two activities, examining the display
model and arranging for its purchase by a strawperson, in-
volved a single course of conduct. As we noted in Berardi,
675 F.2d at 898, the “line between multiple offenses and mul-
tiple means to the commission of a single continuing offense
is often a difficult one to draw. The decision is left, at least
initially, to the discretion of the prosecution.” Here, the Gov-
ernment made clear at oral argument that, in its view,
Mr. Rogers committed a single offense involving a Mossberg
gun. Thus, the record firmly protects Mr. Rogers against fur-
ther prosecution.
No. 21-2638 15
B.
In preparation for Mr. Rogers’s sentencing hearing, the
17
PSR noted that, under the Sentencing Guidelines, Mr. Rog-
ers’s base offense level was 20 because the Sig Sauer rifle was
purchased with a high-capacity magazine. Prior to the hear-
ing, Mr. Rogers objected to the base offense level, stating that
he did “not believe a high-capacity magazine [was] involved
18
in his case.” In the supplemental addendum to the PSR, the
probation officer responded to his objection and noted that
the purchase of the Sig Sauer rifle “included a 30-round mag-
19
azine, which was confirmed by the case agent.”
On appeal, Mr. Rogers continues to assert that when he
handled the rifle at the store, it did not have a high-capacity
magazine in it or near it, and that there is no evidence that he
constructively possessed the rifle when it did. As Mr. Rogers
points out, there was no trial evidence demonstrating that
A.W. purchased a high-capacity magazine at the store or that
one was found in or near the rifle when it was located in her
apartment. The only evidence of the existence of a high-capac-
ity magazine came from the Government’s solitary statement
17 “(a) Base Offense Level (Apply the Greatest):” “(4) 20, if— … (B) the (i)
offense involved a (I) semiautomatic firearm that is capable of accepting a
large capacity magazine; or (II) firearm that is described in 26 U.S.C.
§ 5845(a); and (ii) defendant (I) was a prohibited person at the time the
defendant committed the instant offense; … .” U.S.S.G. § 2K2.1(a)(4)(B).
18 R.106.
19 Id.
16 No. 21-2638
at the sentencing hearing that “the agent confirmed that that
20
gun was sold with a 30-round magazine.”
In response, the Government asserts that “circumstantial
evidence showed that [Mr.] Rogers had knowledge of a high-
capacity magazine since he was with A.W. at the time the Sig
Sauer 400 was purchased, and he both physically and jointly
21
possessed the gun after the purchase.” Mr. Rogers now con-
tends that “even if a large capacity magazine was present
when [he] and A.W. left the Bloomington Rural King, strict
liability should not apply to enhance [his] sentence where
nothing in the record suggests he was aware that such a mag-
azine was in or near the rifle, especially later at the apart-
22
ment.”
But this argument was conceded in the sentencing hearing
itself. At the sentencing hearing, Mr. Rogers only objected to
the higher base offense level on the ground that the high-ca-
pacity magazine was not present when he physically pos-
sessed the firearm in the store. In fact, Mr. Rogers’s attorney
appeared to recognize that a high-capacity magazine was pur-
chased with the rifle. He stated the following at the sentencing
hearing:
So if I understand Mr. Rogers correctly, he be-
lieves that the jury’s verdict was based on what
happened at the gun counter, which did not in-
clude any kind of a magazine whatsoever and
that he should not be, have a base offense level
20 R.125 at 8.
21 Appellee’s Br. 29.
22 Appellant’s Br. 25.
No. 21-2638 17
that is jacked up by six points because someone
else later came and purchased a gun that did
have a magazine on it. I believe that, that is his
23
argument, and I certainly agree with him.
Notably, Mr. Rogers never disputed the magazine’s presence
when the firearm was later purchased by A.W. Instead, he
only objected to its existence near the firearm while he was
physically holding it. Since Mr. Rogers did not object at sen-
tencing that no high-capacity magazine was purchased at all,
but instead only objected that there was not one near the fire-
arm when he physically handled it, he has waived this argu-
ment.
“Although we construe waiver principles liberally in fa-
vor of the defendant, we have time and again found waiver
in just this circumstance—where a defendant or his counsel
either concurs with the facts found in a pre-sentence report,
or expressly declines to make an objection to those facts at
sentencing, or both.” United States v. Robinson, 964 F.3d 632,
642 (7th Cir. 2020) (citation omitted). “In making this determi-
nation, we consider express statements of waiver, as well as
evidence of acquiescence.” United States v. Mansfield, 21 F.4th
946, 954 (7th Cir. 2021). “We have found waiver where either
a defendant or his attorney expressly declined to press a right
or to make an objection.” United States v. Cooper, 243 F.3d 411,
416 (7th Cir. 2001). Finally, we have previously held that
“where a defendant has access to the PSR, and knows of his
right to object to it, objects to certain parts of the PSR, and then
states on the record that he does not have any others, ‘[t]his
seems to us the paragon of intentional relinquishment’ that
23 R.125 at 7.
18 No. 21-2638
warrants a finding of waiver.” Robinson, 964 F.3d at 641 (alter-
ation in original) (quoting United States v. Brodie, 507 F.3d 527,
531 (7th Cir. 2007)).
Here, Mr. Rogers failed to object to the assertion that a
high-capacity magazine was, in fact, purchased with the Sig
Sauer rifle. Thus, he has effectively conceded that argument.
By focusing on the lack of a high-capacity magazine being ei-
ther in or near the firearm at the sales counter, he relinquished
his right to argue that any high-capacity magazine was pur-
chased at all. And the district court found there was sufficient
evidence to support the government’s theory of joint posses-
sion of the Sig Sauer with A.W., who purchased the rifle along
with the high-capacity magazine.
But even if Mr. Rogers had not conceded this point, it
would ultimately fail. Mr. Rogers presented no evidence at
the sentencing hearing that contradicted the findings in the
PSR. Mr. Rogers denied the existence of the high-capacity
magazine when he handled the rifle at the sales counter, but
did not deny that it was purchased with the rifle by A.W. Nor
did he make an argument that the facts surrounding the pur-
chase of the magazine along with the firearm were inaccurate.
Thus, Mr. Rogers “failed to produce any evidence that would
call into question the factual allegations contained in the PSR,
which were based upon hearsay evidence that the court
deemed more reliable than the defendant’s bare denial.”
United States v. Isirov, 986 F.2d 183, 186 (7th Cir. 1993). “Gen-
erally, where a court relies on a PSR in sentencing, it is the
defendant’s task to show the trial judge that the facts con-
tained in the PSR are inaccurate.” United States v. Mustread,
42 F.3d 1097, 1101–02 (7th Cir. 1994). Here, Mr. Rogers failed
to argue or demonstrate that the facts underlying the higher
No. 21-2638 19
base offense level applied in the PSR were inaccurate or incor-
rect.
While one might reasonably expect more evidence in the
record of the purchase of the high-capacity magazine (a re-
ceipt of sale from Rural King or the recovered magazine from
A.W.’s apartment), even without it, it was within the district
court’s discretion to find that it was more likely than not pur-
24
chased along with the rifle. “If the district court’s account of
the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573–74 (1985). “Where there are
two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Id. at 574.
Mr. Rogers effectively waived this argument at the sen-
tencing hearing. But even if he had not, after reviewing the
evidence we are not left with a definite and firm conviction
that a mistake was made on this issue. Thus, the district court
did not err in applying the higher base offense level when cal-
culating Mr. Rogers’s Guidelines range.
24 “In applying the sentencing guidelines, the court ‘may consider relevant
information without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient indicia of
reliability to support its probable accuracy.’” United States v. Grigsby, 692
F.3d 778, 788 (7th Cir. 2012) (quoting U.S.S.G. § 6A1.3(a)).
20 No. 21-2638
CONCLUSION
No constructive amendment of Mr. Rogers’s indictment
occurred. The district court properly identified the risk for du-
plicitous counts at trial but cured the problem with its final
jury instructions. Additionally, the district court used the cor-
rect base offense level when calculating Mr. Rogers’s Guide-
lines range. Therefore, the judgment of the district court is af-
firmed.
AFFIRMED