*1 necessarily fill. It is not clear that an invidi- prompted the strike of
ous motive Reed. jurors ap- do not Other African-American pear beеn struck because of concerns to have prosecution. And one of
about selective prosecutors impermissible artiсulated the factors, striking Reed. reason for These tak- together, strengthen prosecution’s en prosecu- is it clear that casе. Yet neither empanel have refused to Reed in tion would pros- about of concerns selective absence ability Reed did stаte that her ecution. prosecution impaired by was not fair to the involving the incident her brother. For reasons, remand is these desirablе. respectfully I dissent to therefore the ex- tent indicated.
UNITED STATES GILMORE, also known as Marshall Kidd, Defendant- Marshall Barry Elden, Rand Atty., Diane Appellant. (argued), Saltoun Office of U.S. Crim. Receiving, Appellate Div., IL, Chicago, U.S. United States Court Meyer, Chicago, John A. IL (argued), for Marshall Gilmore. 13,
Argued June 1995. POSNER, Bеfore 26, Judge, Chief CUMMINGS and Judges. Rehearing Suggestion Rehearing 12, Sept. En Banc Denied POSNER, Judge. Chief
One section of sentencing the federal guidelines рrovides, so far as bears on this case, that the sentence of a who com- mits a federal firearms offense shall in- “possessed if сreased or transferred firearm or ammunition with knowledge, in- tent, or reason to believe that used or 2K2.1(b)(5).
felony offense.” U.S.S.G. The increase defendant case, Gilmore, guidelines from a level of sentencing range which has a of 46 to 57 months, to a level sentencing where the *2 393 months; judge voluntary be and the fer” should confined to trans- range to 87 is 70 fers, sales, loans, gifts. Imagine months. as and him to 72 The such sentenced is, apply gun Cаn this ever in by decision a case which someone’s was stolen gun criminal, a that later obviously is when the defendant an with violent the consе- felony? awith used in connection quence that had “reason to the owner be- gun that the used in lieve” connec- February of 1991 of and June Between felony. tion with another It would make bought at least 25 firearms 1994 Gilmore punish little sense to the owner for his viola- stores, gun concеaling the that he from fact heavily of tion the firearms laws more than if gun. a to a was and thus forbidden own felon him, gun the had stolen from not been at were later recovered Thirteen of the firearms proper precautions least if he had taken to by mostly from of the pоlice, the members avoid the theft. (a Chicago gang street in whose Blackstones lived) in in territory Gilmore circumstances reasoning But this not lеt Gilmore does off been, guns plain that the had which it was say guideline the hook. The does not “trans- to in being, were or were about be used any ... ... reason ferred firearm with to conduct. connection with felonious Because felony. believe” that it be used in a would government рersuad- not succeed in the did any says “possessed or transferred firearm ing any persons the from whom Gilmore’s of ... ... with to believe” that it reason would they it guns seized to tell how had had been felony. guns in a Before Gilmore’s by purchase guns or obtained the —whether stolen, they possеssed, or were lost were gift him or in stealing or from them course, knowingly by of him. After some judge the or otherwise —the district street (unnecessary spеcify) of them number to infer, the asked refused to as stolen, lost or that the been he knew next do, any or given him to had sold that Gilmore quite likely was to be lost or stolen too. the Blackstones in whose guns to guns way lost of us Gilmore the the rest lose judge they accepted hands The wеre found. pen quite pens. We know that our current seems, fantastic as it that position, Gilmore’s likely eventually, and lost lost guns all the had either been or stolen. knew the each of his same about current Gilmore; not have believed judge should (if guns they after the few were “lost” first the that Gilmore circumstantial evidence was were, assuming believing). as we are without give guns to or resell them to the lawyer argues that a loss is Gilmore’s acci- overwhelming. But members was dental, anticipated. and be accidents cannot evidence, rejecting the held while is true the exact time and What is that date quoted have guideline that that we was the anticipated, usually of an accident cannot bе applicable all because Gilmore was an easy for if it could then it would be to be person” regard with to “excessively negligеnt occurring. prevent the accident from But who, guns, “knowing proclivity his own required precision prevision is not to such of them,” losing had “reason to believe that here, or, an a loss make accident as foresee- firearm, purchased when each he string . enough ablе. It is that losses used that gives general anticipation to fu- rise felony.” occur, likely though to quite ture losses are This unusual because is neither case is when, where, how be unclear. Cutler, acknowledged, as in United States v. that he Not know was (4th Cir.1994), did Gilmore 408 nor inferred prone guns; to lose he also knew the judge, as in the district using in likelihood (7th Cir.1995) finders or thieves were all Rogers, (per 46 F.3d knew, in them criminal He there- curiam), sold the that the dеfendant fore, high probability defendant, that there was a guns. Surely, argues the the eventually gun bought the next he guideline refers is “transfer” to which adds, fеlony. Yet he went on used another voluntary; surely, guideline merely possessing, with negligent buying buying and punish is not to intended — right mind probably “trans- state of conduсt. He is Granted, only hard evidence that Gil- knew that his would be used in
more UNITED STATES of felonies is that one of them was found on his
cousin, selling who was narcotics from the family home. Gilmore lost ten *3 that; the incident with his cousin SNOOK, Defendant-Appellant. John K. placed him on notice of the likelihoоd that up would end in the some of these hands of (or other felons? We think that it did more United States Court of district precisely that the did not com- did), mit clear error there was evidence Gilmore himself was Argued May member, lived in an area infested business, in the gangs, and was narcotics frequеntly where are used. assumed thus far that
We have “reason to something believe” is of which the defendant than, conscious, rather as in the tоrt law of negligence, something of which a reasonable conscious whether or not person, who have a defective under- it.
standing,
Page
is conscious of W.
Keeton
al,
et
Prosser and Keeton on the Law of
(5th
1984).
32, pp.
173-75
ed.
Torts
Most
so, though
of the cases assume
withоut dis-
See,
point.
e.g.,
cussion
United States
(10th
Pantelakis,
Cir.1995);
v.
Cutler, supra,
United
States
(1st Cir.1993). We need not decide. Gil- more knew that the he was losing would used to commit crimes. This
knowledge, actually whether not 2K2.1(b)(5), securely him grasp within the AFFIRMED. Judge, dissenting. very straight-forward
This is failure of proof case. had the burdеn showing that the defendant had reason to
believe that the firearms he in criminal simply never proved alleged. what it had The conse-
quences in present great such a situation no government simply of law: the point prove.
on the it did not End of case. Anderson,
Robert Madi-
son, WI, for U.S.