Sentencing Guidelines

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7^th Circuit Court of Appeals

Case Name: United States of America v. Anthony Loren Gardner

Case No.: 18-1731

Officials: FLAUM, KANNE, and SYKES, Circuit Judges.

Focus: Sentencing Guidelines

Anthony Gardner was arrested after firing a gun at two vehicles thought to be driven by rival gang members. He pleaded guilty to possessing a firearm as a felon. The district judge imposed an above-Guidelines sentence based in part on Gardner’s use of violence in a prior burglary.

On appeal Gardner argues procedural error. He insists that the so-called “categorical approach,” with all its doctrinal arcana and limitations, applies when a judge exercises Booker discretion to impose an above-Guidelines sentence based on a defendant’s aggravating conduct in a prior crime. Not so. The sentencing judge may consider aggravating circumstances in a defendant’s criminal record without the constraints imposed by the categorical approach that usually applies to statutory sentencing enhancements and the determination of offense-level increases and criminal-history points under the Sentencing Guidelines. Gardner also argues that the judge inadequately addressed his mental-health challenges and relied on inaccurate information in the presentence report. These arguments are waived and forfeited, respectively, and the forfeited argument does not involve a plain error. We affirm.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.