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United States v. Gardner

United States Court of Appeals, Seventh Circuit

September 30, 2019

United States of America, Plaintiff-Appellee,
v.
Anthony Loren Gardner, Defendant-Appellant.

          Argued May 21, 2019

          Appeal from the United States District Court for the Central District of Illinois. No. 17-cr-40054 - Sara Darrow, Chief Judge.

          Before Flaum, Kanne, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         Anthony Gardner was arrested after firing a gun at two vehicles thought to be driven by rival gang members. He pleaded guilty to possessing a firearm as a felon. The district judge imposed an above-Guidelines sentence based in part on Gardner's use of violence in a prior burglary.

         On appeal Gardner argues procedural error. He insists that the so-called "categorical approach/' with all its doctrinal arcana and limitations, applies when a judge exercises Booker discretion to impose an above-Guidelines sentence based on a defendant's aggravating conduct in a prior crime. Not so. The sentencing judge may consider aggravating circumstances in a defendant's criminal record without the constraints imposed by the categorical approach that usually applies to statutory sentencing enhancements and the determination of offense-level increases and criminal-history points under the Sentencing Guidelines. Gardner also argues that the judge inadequately addressed his mental-health challenges and relied on inaccurate information in the presentence report. These arguments are waived and forfeited, respectively, and the forfeited argument does not involve a plain error. We affirm.

         I. Background

         On April 22, 2017, Gardner was with his friend Davion Gary in front of Gary's house in East Moline, Illinois, when he spotted a silver Jeep circling the block. Gardner was suspicious because his friend was having problems with a rival street gang. The two men went inside Gary's house, but they soon saw the Jeep circle the block once more. Almost immediately Gardner heard gunshots. At that point he went outside with a semiautomatic handgun and fired shots at the Jeep.

         Moments later a second vehicle stopped at a stop sign after passing Gary's house. Gardner wasn't sure if this vehicle was associated with the Jeep, but he didn't wait to find out. He fired at the second vehicle and then jumped into a car driven by his friend Jennifer Winterbottom. When Gardner saw the second vehicle in the side mirror, he assumed it was following him. He got out of Winterbottom's car and again fired at the vehicle.

         Officers responding to the shooting stopped Winter-bottom's car, arrested Gardner, and seized a loaded handgun along with ammunition. When the officers told Gardner that the driver of the second vehicle wasn't involved with the rival gang, he remarked, "Thank God I wasn't aiming at him."

         Gardner was indicted for possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). While in pretrial custody at the Rock Island County Jail, he engaged in additional violent behavior. Gardner

• spat in the direction of a guard;
• threatened to strike any guard that entered his cell;
• sent a fellow inmate to the emergency room with a ...

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