United States v. James Kruger, 2016 U.S. App. LEXIS 18055

Background

On Sept. 10, 2013 James M. Kruger committed a lengthy crime spree in Wisconsin: he threatened and robbed his uncle, stole multiple firearms and vehicles, kidnapped farm owner Walter Reidl by forcing him into a truck, and led police on high-speed chases before being captured.
Kruger, a felon, had previously obtained a .22 rifle and 1,600 rounds in June 2013 and possessed that rifle/ammunition again in August 2013; he pleaded guilty to two counts of felon-in-possession (18 U.S.C. § 922(g)(1)) covering possession in August and possession during the Sept. 10 spree.
At sentencing the court grouped counts and applied the kidnapping guideline (U.S.S.G. § 2A4.1), including a 2-level enhancement under § 2A4.1(b)(3) for use of a dangerous weapon, based on the court’s finding that Kruger kept a handgun in his lap and thereby used it to force Reidl to remain in the truck.
The PSR assessed six criminal-history points (Category III): one point for a DUI on Sept. 10, 2013, and two points under § 4A1.1(d) for committing offense conduct while serving probation on a prior sentence. Kruger contested some history points.
With adjusted offense level 38 and Category III the Guidelines range exceeded the statutory maximum (240 months), so the statutory maximum became the operative Guidelines range; the district court nevertheless imposed a below-Guidelines 180-month sentence.

Issues

Issue	Plaintiff's Argument (Kruger)	Defendant's Argument (Government)	Held
Whether the 2-level enhancement under U.S.S.G. § 2A4.1(b)(3) applies because Kruger “otherwise used” a firearm during the kidnapping (as distinct from mere brandishing).	Placement of the handgun in his lap at most constituted brandishing/displaying, not the greater ‘‘otherwise used’’ required for the enhancement.	Kruger’s prior threats, pointing a gun at Mrs. Reidl, carrying both weapons into the truck, keeping the handgun in his lap, and refusing Walter’s request to leave show a personalized, continuing threat amounting to ‘‘otherwise used.’’	Affirmed: no plain error. Court found the totality of conduct created a specific, ongoing threat and supported the enhancement.
Whether three criminal-history points were erroneously assigned (one for the Sept. 10 DUI as prior history; two under § 4A1.1(d) because Count Two conduct allegedly occurred while on probation).	The DUI and the § 4A1.1(d) points were improperly treated as prior history or based on conduct not shown to have occurred while on probation; thus Kruger’s category should be lower.	Even if those points were erroneous, Kruger’s Guidelines range would remain capped by the statutory maximum; any change in category would not alter the advisory range the court used.	Court declined to decide plain error on history points because any error was not prejudicial: advisory range would still be 240 months due to statutory cap; sentencing outcome unaffected.

Key Cases Cited

Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (incorrect Guidelines range can constitute significant procedural error and normally shows prejudice)
United States v. Booker, 543 U.S. 220 (2005) (Guidelines advisory; courts must consult and consider them)
Olano v. United States, 507 U.S. 725 (1993) (plain-error standard for forfeited objections)
United States v. Eubanks, 593 F.3d 645 (7th Cir. 2010) (distinguishing brandishing from other “use”; focus on personalized threat)
United States v. Hernandez, 106 F.3d 737 (7th Cir. 1997) (holding that holding a victim at gunpoint during kidnapping supports enhancement)
United States v. Warren, 279 F.3d 561 (7th Cir. 2002) (examples of ‘‘other use’’ where gun created specific threat of harm)
United States v. Taylor, 135 F.3d 478 (7th Cir. 1998) (pointing a gun and using it to coerce conduct supports enhancement)
United States v. Seavoy, 995 F.2d 1414 (7th Cir. 1993) (pointing firearm at victims and threats supported enhancement)
Gall v. United States, 552 U.S. 38 (2007) (procedural reasonableness: courts must correctly calculate and consider Guidelines)
Peugh v. United States, 133 S. Ct. 2072 (2013) (Guidelines serve as the framework and anchor district-court discretion)