44 F.4th 728
7th Cir.2022Background
- Rogers, a convicted felon, was charged with two counts of being a felon in possession of firearms after July 2019 incidents at Rural King stores involving A.W., a female companion who purchased guns.
- Surveillance showed Rogers handling a Mossberg display shotgun in Bedford; shortly after A.W. purchased a (different) Mossberg that was retrieved from the back of the store.
- At a second store in Bloomington Rogers inspected a Sig Sauer rifle; A.W. purchased that rifle and law enforcement later recovered both the Sig Sauer and the Mossberg from A.W.’s residence after Rogers identified their location.
- Grand jury initially returned five counts; three counts were later dismissed and two § 922(g) possession counts went to trial; the first trial ended in mistrial and a second jury convicted Rogers on both counts.
- At trial the discovery that two Mossberg shotguns were involved prompted the district court to require the Government to elect which firearm it would prove; the Government chose the purchased Mossberg (Exhibit 2) and the court instructed the jury accordingly.
- The PSR applied a base offense level of 20 because the Sig Sauer was reported sold with a 30‑round magazine; Rogers objected only that no magazine was present when he physically handled the rifle; the district court overruled and sentenced Rogers to 70 months; he appealed.
Issues
| Issue | Rogers' Argument | Government's Argument | Held |
|---|---|---|---|
| Constructive amendment / variance re: Mossberg count | Grand jury meant the unpurchased display Mossberg; trial proved joint possession of the purchased Mossberg — conviction broadened beyond the indictment | Indictment charged possession of "a Mossberg shotgun" and naturally encompasses the exhibited/purchased firearm; at worst a harmless variance | No constructive amendment. Court required Government to elect and instructed jury to consider Exhibit 2; conviction matched indictment. |
| Duplicitous count (two Mossbergs in one count) | Single count charged two distinct offenses (handling display gun vs. joint possession of purchased gun) causing duplicity and risk of nonunanimous verdicts/double jeopardy | The acts comprised a single continuing course of conduct; district court cured any notice risk by electing and narrowing jury instruction | Not duplicitous in result. Court (though noting waiver risk) held instruction and election cured any duplicity and protected against double jeopardy. |
| Sentencing enhancement for high-capacity magazine (Sig Sauer) | Rogers: no evidence he knew of or constructively possessed a high-capacity magazine; base level enhancement improper | Probation officer and case agent confirmed the rifle was sold with a 30‑round magazine; Rogers only objected that a magazine wasn’t present when he handled the gun | Affirmed. Rogers waived the broader challenge by conceding at sentencing he did not dispute the magazine purchase; district court reasonably relied on PSR/agent confirmation. |
Key Cases Cited
- United States v. Leichtnam, 948 F.2d 370 (7th Cir. 1991) (a defendant may be tried only on charges the grand jury returned)
- United States v. Cusimano, 148 F.3d 824 (7th Cir. 1998) (defines constructive amendment doctrine)
- United States v. Trennell, 290 F.3d 881 (7th Cir. 2002) (indictment–proof match protects notice and double jeopardy)
- United States v. Folks, 236 F.3d 384 (7th Cir. 2001) (discusses indictment and proof matching)
- Collins v. Markley, 346 F.2d 230 (7th Cir. 1965) (practical test for sufficiency of an indictment)
- United States v. Buchmeier, 255 F.3d 415 (7th Cir. 2001) (unit of prosecution and continuing course of conduct analysis under § 922(g))
- United States v. Berardi, 675 F.2d 894 (7th Cir. 1982) (duplicitous indictment dangers: notice, double jeopardy, unanimity)
- United States v. Haldorson, 941 F.3d 284 (7th Cir. 2019) (jury instructions tailored to indictment avoid constructive amendment)
- United States v. Mitchell, 64 F.3d 1105 (7th Cir. 1995) (narrowed jury instructions can prevent a constructive amendment)
- United States v. Robinson, 964 F.3d 632 (7th Cir. 2020) (waiver principles where defendant fails to pursue PSR objections at sentencing)
- United States v. Isirov, 986 F.2d 183 (7th Cir. 1993) (district court may rely on PSR and hearsay if defendant produces no contradictory evidence)
- Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (appellate review deferential where district court's factual account is plausible)