UNITED STATES of America, Plaintiff-Appellee, v. James M. KRUGER, Defendant-Appellant.
No. 15-3203
United States Court of Appeals, Seventh Circuit.
Argued September 16, 2016. Decided October 5, 2016.
838 F.3d 572
The two holdings in this appeal are even more troubling in conjunction with each other. By imposing the requirement that an employee present evidence of the motivation of the harasser in order to proceed with a retaliation claim, but upholding that the failure to complain immediately may be grounds for termination, the court eviscerates the protection against retaliation in Title VII. The employee must report harassment immediately in order to retain the protection against retaliatory termination, but if the employee reports harassing conduct without first obtaining evidence of the harasser‘s motivation—evidence that will often be difficult to obtain—then the protection against retaliation is lost nonetheless because the complaint will not be held to constitute protected activity. Those competing requirements will swallow the protection against retaliation for countless plaintiffs.
For the above reasons, I respectfully dissent from the portion of the decision affirming the grant of summary judgment as to the claim of retaliation, and concur in the judgment affirming the grant of summary judgment as to the discrimination claim.
Johanna M. Christiansen, Thomas W. Patton, Attorneys, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
Defendant-appellant James M. Kruger was arrested in 2013 after a day-long crime spree in southwestern Wisconsin during which he robbed his uncle, kidnapped a 69 year-old farmer, stole multiple vehicles, and drove over rural roads at speeds exceeding 100 miles per hour in an ultimately unsuccessful effort to elude capture by the authorities. He pleaded guilty to being a felon in possession of firearms and ammunition, in violation of
I.
Kruger has led a troubled life. He was born into a broken, dysfunctional family and placed in foster care at the age of 12. He began drinking at age 8 and smoking marijuana and crack cocaine at age 15. Psychiatric problems emerged during his adolescence. He was homeless from the ages of 18 to 25. He has a lengthy criminal history dating back to age 17 that includes multiple prior felony convictions. As a result of those convictions, during the time period relevant to this case, Kruger could not legally possess a firearm or ammunition in interstate commerce.
On June 6, 2013, Kruger arranged to purchase a .22 caliber rifle and a 1,600-round canister of .22 caliber ammunition at a Gander Mountain store in Deforest, Wisconsin. Bonnie Forseth purchased these items at Kruger‘s behest; he told her that he was going to give the rifle to his father as a gift. Following the purchase, she placed the rifle in his truck and did not see it again. Kruger‘s father would later tell investigators that Kruger did, in fact, give the gun to him. But at one or more points during the period of August 14 to August 28, 2013, both the rifle and the ammunition were in Kruger‘s possession.
On August 28, individuals who shared a residence with Kruger in Madison, Wisconsin spoke to a police detective and advised him that Kruger was selling cocaine from the residence and had threatened one of them with a rifle on the prior evening. Kruger reportedly was using both cocaine and methamphetamine to deal with his mental difficulties, and his behavior had become increasingly violent. His roommates indicated that they had first seen the rifle about two weeks earlier. They showed the detective an empty box for the rifle, which contained the June purchase receipt from Gander Mountain. They also advised the detective that the rifle itself was located behind the seat in Kruger‘s truck (one of them had placed it there at Kruger‘s instruction). The truck was located and impounded later that same day. Two days later, the truck was searched pursuant to a warrant. Inside was docu-
At approximately 6:30 on the morning on September 10, 2013, Kruger arrived at the home of his uncle, Keith “Dale” Kruger (“Dale“). Kruger was agitated and behaving irrationally.1 He pointed a gun to Dale‘s head and threatened to kill Dale and other family members. When Dale pushed the gun away, the two struggled and Kruger grabbed his uncle‘s neck and began to choke him, repeating the threat to kill him. Telling Dale that he needed money, Kruger demanded that he open a safe in the basement. Eventually, Dale was able to open the safe and Kruger took a small amount of money from within. Kruger also broke into a gun cabinet and took a rifle, semi-automatic handgun, and a shotgun. Dale eventually escaped to a neighbor‘s house and called the police. Kruger, in the meantime, fled the scene in his car.
Kruger drove to a farm in rural Cassville, Wisconsin, owned by Walter and Linda Reidl. Linda saw the car arrive on the property and pull into or behind a shed. As she approached the shed, Kruger pointed a handgun at her. She told him to put the gun down. Walter arrived on the scene at that moment from elsewhere on the property driving a truck and cattle trailer and Linda flagged him down. When Walter exited the truck, Kruger pointed the gun at his own head. The Reidls engaged Kruger in conversation about religion, during which Kruger advised them that he was a disciple of God. Yet, Kruger threatened to kill both the Reidls and himself.
Walter had been planning to take a cow he had loaded onto the trailer to Bloomington, Wisconsin, for slaughter. Hoping to protect Linda, he suggested that he leave the farm with Kruger in the truck and drop him in Bloomington; Linda would remain behind. Kruger agreed. He changed his clothes and took a cap and a pair of sunglasses from Walter, and Linda retrieved two cans of soda from the house for him. Kruger then ordered Walter into the passenger seat of the Reidls’ truck, placed a shotgun in the cab, took a seat behind the wheel, placed the handgun he had previously pointed at Linda in his lap, and departed the farm with the cow in tow. Kruger told Walter that he also had explosives with him.
Kruger took Walter on a meandering two-hour journey to Dodgeville, Wisconsin, never stopping in Bloomington. Twice during the journey, Kruger put a crushed pill into one of the soda cans, lit the pill, and inhaled the smoke, telling Walter that it calmed him. At one point, Walter asked Kruger to let him go, but Kruger refused. Eventually, when the two reached Dodgeville, Walter persuaded Kruger to let him telephone his wife and tell her he was alright. Kruger gave Walter some money and directed him to see if he could buy some more soda from a taxidermy shop. Walter walked into Rickey‘s Ridge Taxidermy Studio, locked the front door behind him, told the proprietor that he was being held hostage, and asked him to call the police.
When Kruger heard sirens approaching, he sped away from the scene in the truck. (The trailer and cow had been ditched earlier.) Multiple squad cars gave chase, but Kruger initially managed to shake
In a superseding indictment, a federal grand jury charged Kruger with three counts of being a felon-in-possession in violation
Kruger pleaded guilty to Counts Two and Three pursuant to a written plea agreement. At the change of plea hearing, Kruger professed some uncertainty as to when exactly, during the two-week period in August 2013 referenced in Count Two of the indictment, he had possessed the .22-caliber rifle and ammunition he had purportedly purchased for his father. The government‘s proffer focused on the end of that period, when police learned from Kruger‘s housemates that he was in possession of the rifle and impounded the truck in which he had stored it. When the court questioned Kruger about Count Two, he admitted that he was in constructive possession of the .22-caliber ammunition, “probably multiple times” between August 14 and August 28 but could not recall precisely when. R. 146 at 22. He also acknowledged that, at different times during that same period, he had also possessed (or constructively possessed) the rifle; but, again, he could not specify when. R. 146 at 21, 22-23.
At sentencing, Kruger‘s offense level, criminal history, and advisory sentencing range were calculated using the November 2014 Sentencing Guidelines. Counts II and III were grouped together for that purpose. Because Kruger had possessed one or more of the firearms in connection with other felony offenses (including the robbery of his uncle and the kidnapping of Walter Reidl), his offense level was ultimately calculated using the kidnapping guideline, which produced the highest offense level. See
After hearing from counsel for both parties and from Kruger himself, the district court ordered Kruger to serve a below-Guidelines sentence of 180 months. Among other mitigating factors, the court took note of Kruger‘s difficult childhood, his polysubstance drug abuse, and his history of mental health problems. On the other hand, the court observed that Kruger‘s psychiatric problems were not as bad as he made them out to be, that Kruger did not comply with his prescribed regime of medication, and instead resorted to narcotics in an ill-advised effort to self-medicate. The court also noted that Kruger‘s offenses were serious, that his criminal behavior reflected a pattern of escalation, and that he was a dangerous individual from whom the public needed to be protected. That said, the court was not convinced that a sentence as long as that called for by the Guidelines was necessary to achieve specific deterrence.
II.
Kruger‘s appeal challenges the calculation of his advisory sentencing range under the Guidelines. It is the court‘s first task at sentencing to properly calculate that range. E.g., Molina-Martinez v. United States, — U.S. —, 136 S. Ct. 1338, 1342, 194 L. Ed. 2d 444 (2016). Although the Guidelines no longer bind the court after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the court nonetheless “must consult those Guidelines and take them into account when sentencing.” Molina-Martinez, 136 S.Ct. at 1342 (quoting Booker, 543 U.S. at 264, 125 S.Ct. at 767). The failure to properly apply the Guidelines and to correctly calculate a defendant‘s sentencing range thus amounts to a “significant procedural error,” id. at 1346 (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)), because the Guidelines continue to serve as “the framework for sentencing” and “anchor ... the district court‘s discretion,” id. at 1345 (quoting Peugh v. United States, — U.S. —, 133 S.Ct. 2072, 2083, 2087, 186 L.Ed.2d 84 (2013)).
Kruger‘s first contention focuses on the two-point increase in his offense level pursuant to Guidelines section
We begin with the enhancement for use of a weapon in connection with the kidnapping. In order to show that the district court committed plain error which entitles him to relief, Kruger bears the burden of showing that the district court (1) committed error; (2) that is plain, in the sense that it is obvious in retrospect, Olano, 507 U.S. at 734, 113 S.Ct. at 1777; United States v. Hamad, 809 F.3d 898, 904 (7th Cir. 2016); and (3) that the error affects his substantial rights, in the sense that it made a difference to the outcome (in this case, his sentence), Olano, 507 U.S. at 734, 113 S.Ct. 1777-78; Hamad, 809 F.3d at 904. If he satisfies those criteria, then we as the reviewing court must consider whether the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings,” such that it warrants the exercise of our discretion to correct the error. Olano, 507 U.S. at 732, 113 S.Ct. at 1776 (internal bracketing, quotation marks, and citations omitted); see also United States v. Ramirez, 182 F.3d 544, 547 (7th Cir. 1999). See also Molina-Martinez, 136 S.Ct. at 1343.
Guidelines section
The district court committed no obvious error in finding that Kruger otherwise used a firearm in kidnapping Walter. As we have previously acknowledged, the language of the relevant guidelines and the accompanying commentary provides no clear guidance on what will distinguish mere brandishing of a weapon from other use, short of actual discharge of the weapon, that will qualify for the enhancement. United States v. Eubanks, 593 F.3d 645, 650 (7th Cir. 2010) (citing United States v. Hernandez, 106 F.3d 737, 741 (7th Cir. 1997)). Our cases have looked for conduct that “create[s] a personalized threat of harm,” Eubanks, 593 F.3d at 651 (quoting United States v. Warren, 279 F.3d 561, 563 (7th Cir. 2002)) (bracketing ours); see also United States v. Taylor, 135 F.3d 478, 483 (7th Cir. 1998), as when the defendant
In this case, one could plausibly conclude that Kruger‘s actions leading up to and during the kidnapping created a specific threat of harm to Walter Reidl in order to secure his cooperation. True, there is no evidence that, as Kruger and Walter left the farm in Walter‘s truck or at any point thereafter, Kruger pointed the gun specifically at Walter and/or expressly threatened to shoot him if he did not follow Kruger‘s orders. But as we pointed out at argument, it is inappropriate to isolate the kidnapping phase of the encounter between Kruger and the Reidls from the broader res gestae. On arrival at the Reidls’ farm, Kruger had pointed the gun at Mrs. Reidl, implicitly threatening her life. After Walter arrived on the scene and the three of them were discussing religion, Kruger expressly threatened to kill both Mr. and Mrs. Reidl as well as himself. It was against that backdrop that Walter suggested he go with Kruger to Bloomington—he wanted Kruger to leave his wife behind in safety. Kruger agreed, but he took both the rifle and the handgun with them in Walter‘s truck, and kept the handgun at the ready in his lap. Given what had transpired, Walter would have understood that his life remained in danger as the two departed the farm. More to the point, Walter (and anyone in his position) would have understood the visible presence of the gun in Kruger‘s lap as communicating a continuing threat to harm him if he did not cooperate. There is no question that Kruger had Walter under his control: Walter at one point asked to be let go and Kruger refused. Only when he took refuge in the taxidermy shop after being sent to obtain more soda for Kruger was he able to escape. Under these circumstances, the district court committed no obvious error in finding that Kruger did not simply brandish a weapon during the kidnapping, but overtly used the firearm to intimidate Walter and convey an implicit threat to harm him (echoing the express threats he had made earlier) if Walter attempted to escape or did not comply with Kruger‘s orders.
With that point settled, we turn to the criminal history points that Kruger maintains were assigned to him in error. As we noted above, Kruger was assessed one criminal history point for a Wisconsin case in which Kruger was convicted of operating a motor vehicle on September 10, 2013, while under the influence of a controlled substance. R. 127 ¶ 84. He argues that this was erroneously treated as part of his prior criminal history when, in fact, the underlying conduct was part of the offense of conviction in this case. Kruger was assessed an additional two points pursuant to Guidelines section
Even if Kruger were correct that all three of these points were assigned in error, however, it would have no effect on his advisory sentencing range. Recall that Kruger‘s adjusted offense level of 38, coupled with a criminal history category of III, produced a sentencing range of 292 to 365 months. But because that range exceeded the statutory maximum term of 240 months, the statutory maximum became the Guidelines sentencing range.
In short, Kruger has not shown that he was prejudiced by any error in the assessment of his criminal history category. As any such error did not affect the advisory sentencing range, there is no likelihood that he would have received a different sentence absent the error. Compare Molina-Martinez, 136 S.Ct. at 1345 (application of incorrect sentencing range resulting from forfeited error normally is sufficient by itself to establish substantial
III.
For the foregoing reasons, we AFFIRM Kruger‘s sentence.