462 F. App'x 635
7th Cir.2012Background
- Salinas left a loaded semi-automatic handgun at his ex-girlfriend's home; she notified police and identified Salinas as the owner via messages demanding the gun back.
- Salinas was charged as a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and pled guilty, receiving a 120-month sentence.
- Salinas appealed; counsel filed an Anders brief and sought to withdraw; Salinas did not respond.
- The district court determined Salinas’s base guideline range as 120–150 months, based on a total offense level of 26 and criminal history category VI.
- The court added two levels for the gun being stolen and four levels for the serial-number obliteration, and denied an acceptance-of-responsibility reduction due to pretrial misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Stolen-gun enhancement validity | Salinas challenges the enhancement for the gun being stolen. | Salinas argues the evidence is insufficient to prove stolen status. | The evidence (last owner’s statement) was reliable enough to support the enhancement. |
| Serial-number alteration enhancement validity | Salinas contends the alteration/obliteration enhancement does not apply. | Salinas argues no material change makes information less accessible. | Serial number unreadable to naked eye satisfies alteration/obliteration; enhancement applied. |
| Acceptance of responsibility reduction | Salinas would have received a reduction for acceptance of responsibility. | District court properly refused due to on-bail misconduct. | denial of the reduction upheld as proper. |
| Reasonableness of sentence | Salinas could challenge reasonableness of within-range sentence. | Appeal on reasonableness is frivolous; Rita presumption applies. | Within-range sentence presumed reasonable; challenge considered frivolous. |
Key Cases Cited
- Roche v. United States, 415 F.3d 614 (7th Cir.2005) (reliability of evidence to support gun-stolen enhancement)
- United States v. Statham, 581 F.3d 548 (7th Cir.2009) (no scienter requirement for stolen-gun enhancement)
- United States v. Schnell, 982 F.2d 216 (7th Cir.1992) (no scienter requirement for certain enhancements)
- United States v. Jones, 643 F.3d 257 (8th Cir.2011) (defining alteration/obliteration standard)
- United States v. Perez, 585 F.3d 880 (5th Cir.2009) (interpretation of altered/obliterated serial numbers)
- Rita v. United States, 551 U.S. 338 (U.S. Supreme Court 2007) (within-range sentence presumptively reasonable)
- United States v. King, 506 F.3d 532 (7th Cir.2007) (acceptance-of-responsibility considerations on pretrial conduct)
- United States v. McDonald, 22 F.3d 139 (7th Cir.1994) (pretrial conduct and acceptance-of-responsibility guidance)