United States v. Bryant, Darryl

In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-2850

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARRYL BRYANT,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. IP 04-013-CR-01 B/F—Sarah Evans Barker, Judge.

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ARGUED FEBRUARY 22, 2005—DECIDED AUGUST 22, 2005

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Before KANNE, WOOD, and SYKES, Circuit Judges.

KANNE, Circuit Judge. A grand jury charged Darryl

Bryant, a convicted felon, with unlawful possession of

firearms in violation of 18 U.S.C. § 922(g)(1). Bryant

entered a plea agreement, which was filed with the dis-

trict court on March 24, 2004. Under the terms of the

plea agreement, Bryant accepted full responsibility. He also

admitted that he possessed three firearms and that he had

previously been convicted of a felony. Bryant agreed that

his base offense level was at least 20, because his prior

conviction was for a crime of violence. U.S.S.G.

§ 2K2.1(a)(4)(A). The plea agreement, however, left two

contested factual issues related to the offense conduct:

whether one of the firearms Bryant possessed was a

2 No. 04-2850

semiautomatic assault weapon as defined in 18 U.S.C.

§ 921(a)(30),1 and whether Bryant possessed the firearms in

connection with another felony offense—namely, drug

dealing.

After the parties filed the plea agreement with the

district court, Blakely v. Washington, 124 S. Ct. 2531

(2004), and this court’s decision in United States v. Booker,

375 F.3d 508 (7th Cir. 2004), were handed down in quick

succession. In their sentencing memoranda, the government

and Bryant presented their respective views on the effect

that these cases might have on Bryant’s sentence. Bryant

restated his intention to plead guilty, waive a trial by jury,

and have the judge resolve the disputed factual issues.

Bryant insisted, however, that pursuant to the Sixth

Amendment principles set forth in Blakely and Booker, the

judge must find those facts beyond a reasonable doubt.

At the sentencing hearing on July 15, 2004, the district

judge presciently concluded that the federal sentencing

guidelines would not pass constitutional muster in light

of Blakely and Booker. Accordingly, she stated her intention

to fashion a sentence pursuant to her discretion. The judge

opined that she was not required to make findings of fact,

let alone make those findings beyond a reasonable doubt,

because she was not adhering to the guide-

1

According to 18 U.S.C. § 921(a)(30), a semiautomatic assault

weapon must have the ability to accept a detachable magazine, a

pistol grip that protrudes conspicuously beneath the action of the

weapon, and a flash suppressor or threaded barrel designed to

accommodate a flash suppressor. Bryant concedes that the rifle at

issue had the first two characteristics, but he disputes the third,

as discussed in greater detail below. Although not relevant to the

disposition of this case, we note that § 921(a)(30) was repealed

after the Violent Crime Control and Law Enforcement Act of 1994,

108 Stat. 1796, expired on September 13, 2004 (following Bryant’s

conviction and sentencing).

No. 04-2850 3

lines. Nevertheless, she resolved to make the findings of

fact because of the uncertainty regarding the fate of the

guidelines and our directive in Booker that judges should

impose alternative sentences until that uncertainty is

settled.

The judge then addressed the two disputed factual issues

identified in the plea agreement. The presentence investiga-

tion report (“PSR”) recommended a base offense level of 22,

pursuant to U.S.S.G. § 2K2.1(a)(3) because, in the view of

the probation officer, Bryant’s weapon was in fact a semiau-

tomatic assault weapon because it sported a “flash suppres-

sor” and thus fit the definition contained in § 921(a)(30). In

addition, the PSR recommended a four-level enhancement

pursuant to U.S.S.G. § 2K2.1(b)(5) because Bryant pos-

sessed his firearms in connection with drug dealing.

Bryant argued that the device was not a “flash suppres-

sor,” and thus the rifle was not a semiautomatic assault

weapon as defined in § 921(a)(30), which requires that such

a firearm have “a flash suppressor or threaded

barrel designed to accommodate a flash suppressor.” As

evidence, Bryant presented to the judge a printed web page

advertisement of a device labeled a “flash hider”; Bryant

contended that the device on his rifle muzzle was the

advertised “flash hider,” not a “flash suppressor.” The

government, on the other hand, presented testimony from

a special agent of the Bureau of Alcohol, Tobacco, Firearms,

and Explosives (“BATFE”), who testified that the mounted

device was a flash suppressor. The agent also testified that

he sent pictures of the rifle to the BATFE’s firearms

technology branch, which opined that the pictured firearm

was a semiautomatic assault weapon because it appeared

to have all of the prohibited characteristics listed in §

921(a)(30).

The judge heard this evidence and evaluated the other

available evidence, including information contained in

4 No. 04-2850

the PSR and the photographs of the rifle. The judge found

that the device was in fact a flash suppressor or that the

rifle had the capacity to accommodate such a device, and

thus the rifle qualified as a semiautomatic assault weapon.

She expressly made her finding “by a preponderance and by

the standard of beyond a reasonable doubt.” The judge

agreed that a base offense level of 22 was therefore appro-

priate.

The judge also considered information in the PSR and

other evidence indicating that Bryant had possessed

firearms in connection with drug dealing. The PSR con-

tained ample evidence that Bryant was in fact dealing

drugs. The day before the confiscation of the firearms,

Bryant sold cocaine to a government informant. Following

the controlled buy, the government recovered 3.14 grams of

crack cocaine, 9.85 grams of marijuana, electronic scales,

plastic baggies, and various controlled substances in tablet

form. Bryant was found to have $1,018 in his pocket,

including a marked bill from the controlled buy. Finally,

Bryant was shown to have had no verifiable employment

since May 2000. Upon consideration of this evidence, the

judge concluded beyond a reasonable doubt that Bryant did,

in fact, possess the firearms in connection with drug

dealing.

After making both findings of fact, the district judge

reiterated, “I’m not legally bound by the guidelines, but I

will take the guidelines into account as I fashion a sen-

tence.” The judge allowed Bryant to address the court, and

noted the fact that Bryant accepted responsibility for his

crimes. The judge also carefully weighed the various factors

present in Bryant’s case, including his personal back-

ground, his criminal background, his age, his education,

and his family situation. She also considered the gravity of

Bryant’s offense and the likelihood that punishment would

deter future criminal behavior by Bryant. In short, the

judge carefully considered the various factors enumerated

No. 04-2850 5

in 18 U.S.C. § 3553.

Following her oral recitation of the factors present in

Bryant’s case, the judge in her discretion imposed a sen-

tence of 84 months’ imprisonment, three years of supervised

release, and a $100 special assessment. The judge noted

that the statutory maximum for violation of 18 U.S.C. §

922(g)(1) is 120 months’ imprisonment. She also noted that,

had she applied the guidelines, Bryant would have had a

total offense level of 25 and criminal history category of IV,

making the applicable sentencing range 84-105 months’

imprisonment. The sentence Bryant actually received,

therefore, would have been appropriate even if imposed

pursuant to the guidelines.

On appeal, Bryant argues that the district judge

erred when she attempted to anticipate the fate of the

guidelines and, in doing so, she failed to sentence Bryant in

accordance with the methodology that the Supreme Court

eventually adopted in Booker. Bryant also holds fast to his

view that the judge had to make her findings of fact beyond

a reasonable doubt and that she failed in that respect, too.

Because of these perceived errors, Bryant seeks a remand

for resentencing.

Bryant is wrong on all counts. The district judge’s

approach nicely predicted the Supreme Court’s reasoning in

United States v. Booker, 125 S. Ct. 738 (2005). There was

nothing wrong with the judge’s attempt to anticipate the

state of the federal guidelines and render a sentence

accordingly, particularly in light of Blakely and this court’s

Booker opinion—both of which cast significant doubt on the

continued viability of the federal sentencing scheme as it

stood. The judge may not have gotten the “precise holding”

correct, as Bryant argues, but she certainly got close enough

that we can discern no error in Bryant’s sentencing.

Because the judge presciently treated the guidelines as

advisory, she could sentence Bryant up to the statutory

maximum—ten years—before running afoul of the Sixth

6 No. 04-2850

Amendment, as set forth in Booker’s predecessor cases. See,

e.g., Blakely, 124 S. Ct. at 2531; Apprendi v. New Jersey,

530 U.S. 466 (2000). By treating the guidelines as advisory,

the judge necessarily sidestepped the constitutional infir-

mity identified in Booker—judicial factfinding coupled with

mandatory application of the guidelines. Booker, 125 S. Ct.

at 750, 764; accord United States v. Antonakopoulos, 399

F.3d 68, 75 (1st Cir. 2005) (“The [Booker] error is not that

a judge . . . determined facts under the Guidelines which

increased a sentence beyond that authorized by . . . an

admission by the defendant; the error is only that the judge

did so in a mandatory Guidelines system.”). The judge

sentenced Bryant to 84 months’ imprisonment, well beneath

the statutory maximum. There is no Booker error here, so

Bryant’s argument on that score fails.

The district judge committed no error with respect to her

findings of fact, either. Bryant interprets Booker and its

predecessor cases as requiring all factual determinations in

sentencing to be proved beyond a reasonable doubt. We

reiterate, however, that these cases do not foreclose judicial

factfinding in the sentencing context, nor do they dictate

that judges must find those facts beyond a reasonable

doubt. See United States v. Dean, 414 F.3d 725, No. 04-

3172, 2005 WL 1592960, at *4-5 (7th Cir. July 7, 2005);

United States v. Della Rose, 403 F.3d 891, 907 (7th Cir.

2005); see also U.S.S.G. § 6A1.3. Booker and its predecessors

make clear that a Sixth Amendment problem emerges if

judicial factfinding results in a sentence exceeding the

statutory maximum, for example, or if such factfinding

requires a particular sentence in the context of a mandatory

sentencing guidelines scheme. See Dean, 2005 WL 1592960,

at *5 (“With the guidelines now merely advisory,

factfindings that determine the guidelines sentence do not

determine the actual sentence, because the sentencing

judge is not required to impose the guidelines sentence; and

so the Sixth Amendment is not in play.”); United States v.

No. 04-2850 7

George, 403 F.3d 470, 472 (7th Cir. 2005); accord United

States v. Trujillo-Terrazas, 405 F.3d 814, 818 (10th Cir.

2005) (“By rendering the Guidelines discretionary, the

[Supreme] Court saved the process of judicial factfinding

from unconstitutionality under the Sixth Amendment.”).

Such circumstances are not present here. The judge

treated the guidelines as advisory, and Bryant’s sentence

was well below the statutory maximum sentence he

could have received on the basis of facts he admitted in his

plea agreement. We also note that the judge properly

followed the procedure to calculate a guidelines sentence,

thus indicating that she took the guidelines into account

in fashioning a sentence. Although the judge indicated

her belief that she did not have to conduct factfinding when

treating the guidelines as advisory, she prudently did so

anyway. See Fed. R. Crim. P. 32(i)(3)(B); U.S.S.G. § 6A1.3.

This case, therefore, does not present a situation like that

in Dean, where we remanded for resentencing because the

district court failed to resolve factual disputes in the

PSR—a requirement that survives even under an advisory

guideline scheme. 2005 WL 1592960, at *4-5.

All that remains, then, of Bryant’s challenge to the

district court’s sentencing procedure is his contention that

the judge’s factual findings were erroneous. We review

these factual findings for clear error. United States v.

Corral, 324 F.3d 866, 870 (7th Cir. 2003). Under this

deferential standard of review, we will not overturn the

factual findings of the district court unless we are left

with the definite and firm conviction that a mistake has

been made. Id.; see also United States v. Stokes, 211 F.3d

1039, 1044 (7th Cir. 2000) (“Where there are two permissive

views of the evidence, the fact finder’s choice between them

cannot be clearly erroneous.”).

Upon review of the record, we cannot say that the

judge’s finding that Bryant’s rifle was a semiautomatic

8 No. 04-2850

assault weapon was clearly erroneous. As recounted above,

the judge considered evidence from a variety of sources,

including testimony from a BATFE agent, regarding

the identity of the device in question. Much of the evidence

pointed to the conclusion that the device was a “flash

suppressor.” The judge did not stop at the point of

simply identifying the device as a flash suppressor. She also

queried the BATFE agent regarding the purposes served by

such a device, and the agent replied that its main function

is to “suppress” muzzle flash, which makes the weapon

more dangerous to law enforcement personnel. Although

Bryant provided evidence that the device was a “flash

hider,” he also conceded that the device reduced muzzle

flash to some degree (though he continued

to insist—without citation—that a flash suppressor must

completely eliminate muzzle flash).

After considering all of the evidence, the judge con-

cluded that the apparent dispute was largely a matter of

semantics, as regardless of how the device in question is

labeled, the evidence indicated that it performed the

function of a flash suppressor as defined by the statute.

Thus, the judge found that the device in question was a

flash suppressor and the rifle, therefore, was a semiauto-

matic assault weapon.2 We conclude that the record amply

2

Bryant also takes issue with the judge’s alternative conclusion

that even if the device was not a flash suppressor, the rifle could

readily accommodate such a device. Bryant claims that the judge

erroneously interpreted the statutory language and that there was

no evidence that his rifle had a “threaded barrel designed to

accommodate a flash suppressor,” which the statute specifies as

an alternative to having a mounted flash suppressor. See 18

U.S.C. § 921(a)(30). But the record supports the judge’s conclusion

that the device mounted on Bryant’s rifle was in fact a

flash suppressor, so we need not bog down in a discussion about

the meaning of the statutory language or the judge’s interpreta-

(continued...)

No. 04-2850 9

supports the judge’s finding, and we find no error in that

determination.

Likewise, we find no clear error in the district judge’s

factual determination that Bryant possessed the firearms

in connection with drug dealing. As noted, the judge

evaluated detailed evidence in the PSR indicating that

Bryant possessed the firearms in connection with an-

other felony offense—drug dealing—or with the knowl-

edge that the firearms would be used or possessed in

connection thereof. See U.S.S.G. § 2K2.1(b)(5). Bryant

offered no evidence to dispute these facts at the hearing,

even though he had opportunity to do so. Instead, he

challenges the evidence in the PSR as inadequate to

establish a nexus between the firearms and the drugs

found. But on the basis of the evidence in the record, the

judge was on solid ground concluding as she did, given the

ubiquitous observation in the courts that guns are “tools

of the drug trade.” See, e.g., United States v. Castillo,

406 F.3d 806, 815 (7th Cir. 2005). Plus, the evidence in the

record indicates that the firearms were found in close

physical proximity to the narcotics in question, a circum-

stance we have held as presumptively establishing a

nexus between the firearms and drug activity. See, e.g.,

Corral, 324 F.3d at 873. We find no clear error in the

judge concluding as she did that Bryant possessed his

firearms in connection with drug dealing.

Finally, pursuant to Booker, we must evaluate the

reasonableness of Bryant’s sentence. 125 S. Ct. at 765. We

repeat that the district judge imposed a sentence that

happened to be at the low end of the calculated guide-

lines range. We have recognized that sentences properly

2

(...continued)

tion thereof in making her alternative finding. Cf. United States

v. Marshall, 83 F.3d 866, 869 (7th Cir. 1996).

10 No. 04-2850

calculated under the guidelines (and there is no indica-

tion that the district judge erred in her calculations) are

entitled to a rebuttable presumption of reasonableness.

See United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).

Furthermore, the reasonableness of a sentence is guided

by the factors set forth in 18 U.S.C. § 3553(a). See Booker,

125 S. Ct. at 765-66; United States v. Alburay, 415 F.3d 782

(7th Cir. 2005).

As described, the district judge gave detailed and full

consideration to the various factors in play in § 3553,

and the resulting sentence was within the properly calcu-

lated guidelines range. In sum, we have no diffi-

culty concluding that Bryant’s sentence was reasonable, and

Bryant has offered no valid argument to convince

us otherwise.

AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-22-05