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United States v. Nichols

United States Court of Appeals, Seventh Circuit

February 6, 2017

United States of America, Plaintiff-Appellee,
Jason L. Nichols, Defendant-Appellant.

          Argued September 23, 2016

         Appeal from the United States District Court for the Western District of Wisconsin. No. 3:15-cr-00051-jdp-1 - James D. Peterson, Judge.

          Before Ripple, Rovner, and Sykes, Circuit Judges.

          Ripple, Circuit Judge.

          Jason Nichols was charged with two counts of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). Prior to trial, Mr. Nichols moved to suppress the evidence relating to the second count, and, following an evidentiary hearing, the district court denied his motion. He then pleaded guilty to count two, reserving his right to appeal the suppression issue. The Government moved to dismiss the first count and the court granted that motion.

          In calculating the appropriate guidelines range, the district court denied Mr. Nichols credit for acceptance of responsibility and imposed an enhancement for obstruction of justice. It also concluded that he was not entitled to a reduction in his offense level on the ground that all the firearms and ammunition in his possession were used exclusively for sporting purposes. The court imposed a sentence of 27 months' imprisonment, at the low end of the applicable guidelines range.

         Mr. Nichols now challenges his conviction and sentence. He contends that his confession to law enforcement was involuntary and should have been suppressed by the district court. He further contends that, in calculating his sentencing guidelines range, the court should have given him credit for acceptance of responsibility, see U.S.S.G § 3E1.1, and should not have imposed an enhancement for obstruction, id. § 3C1.1. Finally, he submits that his guidelines range should have been reduced because all of the contraband for which he was prosecuted was used for lawful sporting purposes. See U.S.S.G. §2K2.1(b)(2).

         We affirm. The district court was faced with opposing versions of the circumstances of Mr. Nichols's confession from Mr. Nichols himself and his probation officer; it made a credibility determination, which we have no cause to upset on appeal. In light of its determination that Mr. Nichols testified falsely in connection with his motion to suppress, the court committed no reversible error in applying the obstruction enhancement and denying credit for acceptance of responsibility. Finally, Mr. Nichols's unsupported statements failed to carry his burden of demonstrating that the contraband involved in his case was used exclusively for lawful sporting purposes as would justify a reduction under U.S.S.G. §2K2.1(b)(2).




         On January 7, 2015, Mr. Nichols was involved in an altercation at his home that escalated when he threatened someone with a weapon. Responding officers of the Iowa County, Wisconsin Sheriff's Department took him into custody. During the subsequent investigation of the altercation, Mr. Nichols consented to a search of his property. During the search, officers found a black case for a Taurus brand handgun with six .40 caliber rounds in it, as well as a stray round in a cabinet. In the same cabinet, officers discovered a Taurus PT 58 SS .380 semi-automatic handgun with a fully loaded magazine along with other ammunition in a separate, zippered case. Mr. Nichols stated that he previously had sold a handgun without its case and that he had forgotten about the remaining handgun.

         At the time of the incident, Mr. Nichols was serving a three-year probation term for a prior federal felony mail fraud offense. When his probation officer, Kris Kiel, learned of Mr. Nichols's arrest, she conducted a home visit. In the course of that visit, Mr. Nichols turned over to Officer Kiel a gallon-size container, half-full of various types of firearm ammunition as well as two or three shotgun shells, which he retrieved separately from a hunting vest.


         In April 2015, a federal grand jury indicted Mr. Nichols on one count of possession of a firearm and ammunition by a felon and one count of possession of ammunition by a felon, both in violation of 18 U.S.C. § 922(g). Mr. Nichols initially pleaded not guilty and moved to suppress the evidence underlying the second count. He claimed that any statements and surrender of contraband that he had made to Officer Kiel were involuntary and based on false promises of leniency.

         A magistrate judge held a hearing on the motion. Officer Kiel testified that she had been a U.S. Probation Officer for twenty-three years. She described her review of the police report from the January 7 altercation, and the brief phone contacts she had with Mr. Nichols to set up the home visit on January 23. She noted that she had been concerned about the possibility that Mr. Nichols had a firearm on his property because the police report had noted the recovery of an empty handgun case. With respect to the visit itself, she described Mr. Nichols as calm and cooperative. She stated that she had inquired about the empty case and that he had told her that he sold the weapon without its case to a former girlfriend.

         According to Officer Kiel, this exchange led to a conversation "about contraband and what constituted contraband."[1]She explained that "guns, ammunition, drugs, anything like that would be considered contraband" and asked whether he had any.[2] At that point, according to Officer Kiel, Mr. Nichols led the way to the basement and gave Officer Kiel "a gallon-size half-full container of ammunition of various types."[3]Officer Kiel then inquired whether there was any other contraband in the house, and Mr. Nichols led Officer Kiel and her colleague back upstairs and took two or three shotgun shells out of a hunting vest and gave them to her.

         Officer Kiel affirmatively stated that neither in her pre-visit calls nor in the home visit itself did she ever make any promises of leniency to Mr. Nichols in exchange for his cooperation in turning over any contraband. She also did not threaten him with revocation of his probation for failure to answer questions or cooperate. She stated that it was the policy of the Probation Office to make no promises to defendants who are under supervision. Officer Kiel also stated that, in her many years as a Probation Officer, this occasion was only the second time that someone had turned over a weapon or ammunition to her. It was not her practice to request such a turnover; rather, she would inform those under her supervision of the prohibition on contraband, what it covered, and consequences for violation. She would reiterate this information on multiple occasions throughout probation. The court also asked several follow-up questions, and Officer Kiel noted that she had begun discussing these prohibitions with Mr. Nichols when he was in his pretrial phase for his prior offense. She knew him to be an avid hunter, and she knew of the presence of hunting equipment; once he was placed on probation following the conviction, she initiated and repeated the conversations about contraband.

          Mr. Nichols also testified at the hearing. He claimed that "[s]hortly after being placed on probation" he discussed firearms and ammunition with Officer Kiel.[4] Specifically, according to Mr. Nichols, Officer Kiel had told him that "if [he] was to find any ammunition in the home" he should "give it to her."[5] In response, he claimed that he had "asked [Officer Kiel] if [he] would get in trouble and [Officer Kiel] said no."[6]He also claimed that in one of the phone calls to arrange the home visit in January 2015, Officer Kiel again had told him that he should hand over any ammunition to her for proper disposal, and again had promised that he would not "get in trouble" if he did so.[7] Mr. Nichols further claimed that, in that phone conversation, he responded that, to his knowledge, there was no ammunition in the home but that he had some unpacked boxes in the basement and was not sure of their contents. He further testified that, on the day of the visit itself, Officer Kiel again instructed him to hand over to her any contraband, which he did. Mr. Nichols also testified about an email he had sent to his attorney in May, after having seen the charge related to the contraband recovered from him on January 23. In the email, he noted that he had been promised that handing over contraband would not result in adverse consequences for him. He also stated that, had he not received these promises, he would have disposed of the ammunition himself.

          Based on both Officer Kiel's and Mr. Nichols's testimony, the magistrate judge issued a report and recommendation, which characterized the motion hearing as essentially "a swearing contest."[8] The magistrate judge accepted Officer Kiel's version of events and therefore recommended denial of Mr. Nichols's motion to suppress. The report found that Mr. "Nichols had plenty of opportunities to dispose of firearms and ammunition on his own."[9] Moreover, he had been alerted on numerous occasions of the consequences of contraband prior to the January incidents and had never disclosed the presence of the handgun recovered in early January or the ammunition. Allegations that he forgot were incredible, given that he "had been able to remember, recover and brandish his handgun in a trice while drunk and angry."[10] The report also found it "[e]qually incredible" that Mr. Nichols had sought assurances about immunity prior to knowing that there was contraband in the basement, but did not seek to confirm it once he had allegedly located the ammunition in advance of the home visit.[11]

         Mr. Nichols objected to the report and recommendation of the magistrate judge. He first argued to the district court that the magistrate judge had relied on erroneous facts that were extraneous to the immediate matter at hand. He also contended that the magistrate judge erroneously had concluded that Mr. Nichols's perception of a promise of immunity was not a determinative factor. Finally, he contended that the factual record did not support the recommendation.

         The district court overruled these objections and adopted the magistrate judge's recommendation. Specifically, the district court found that the magistrate judge properly had considered the allegations surrounding the altercation on January 7, 2015 because "[t]he allegation that Nichols had possessed a firearm during an incident that le[d] to his arrest is obviously part of the factual background of this case."[12] As for Mr. Nichols's "state of mind, " the district court concluded that "[t]he decisive fact is what Kiel said, and it does not matter at all what Nichols believed. If Kiel did not make the promise, then it does not matter whether Nichols somehow convinced himself that she had."[13]

         After the district court's denial of the motion to suppress, Mr. Nichols pleaded guilty to Count 2 of the indictment, the count involving the ammunition recovered by Officer Kiel; in exchange, the Government agreed to dismiss Count 1, involving the ...

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