37 F.4th 1235
7th Cir.2022Background:
- May 2018: a shooting in Chicago involved occupants of a Honda Civic; shell casings showed two guns were fired.
- Police chased the Civic; it crashed and burned; three men (including Rodney Burnett) fled on foot; at least one fleeing passenger carried a gun.
- Officers arrested Burnett nearby; he wore a mask, fled from the vehicle, and had two different brands of ammunition in his pockets that matched casings from the scene.
- Police later recovered three guns near the incident (one in the alley, one from the burned car, and one discarded); two of those guns were ballistically tied to the shooting.
- Burnett pleaded guilty to being a felon in possession of ammunition (18 U.S.C. § 922(g)(1)); the district court applied a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) finding three firearms were “involved,” yielding an advisory range of 100–125 months and a 110-month sentence.
- Burnett appealed the three-gun enhancement, arguing only two guns were fired and the enhancement was unsupported.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 2K2.1(b)(1)(A) two-level enhancement for involvement of three or more firearms was supported. | Burnett: only two guns were fired; no proof the third gun was involved; mere presence is insufficient for aider-and-abettor liability. | Government/District Ct: §1B1.3 relevant-conduct covers guns used in joint criminal activity or aided-and-abetted possession; circumstantial evidence (matching ammo, flight together, masks, discarded guns) shows three guns were attributable to Burnett. | Affirmed. Court held the district court did not clearly err: by a preponderance the three guns were part of joint criminal activity or otherwise attributable as relevant conduct; enhancement proper. |
Key Cases Cited
- United States v. Ritsema, 31 F.3d 559 (7th Cir. 1994) (describing the role of the relevant-conduct provision)
- United States v. LePage, 477 F.3d 485 (7th Cir. 2007) (applying §1B1.3 to determine which firearms are “involved in” the offense)
- United States v. Miller, 883 F.3d 998 (7th Cir. 2018) (de novo review for guideline interpretation)
- United States v. Ghiassi, 729 F.3d 690 (7th Cir. 2013) (clear-error review of factual findings about number of firearms)
- United States v. Baines, 777 F.3d 959 (7th Cir. 2015) (preponderance standard and clear-error review articulated)
- Rosemond v. United States, 572 U.S. 65 (2014) (aiding-and-abetting requires proof of intent)