United States v. Galvan

44 F.4th 1008

UNITED STATES of America, Plaintiff-Appellee,

v.Nain GALVAN, Defendant-Appellant.

No. 21-2771

United States Court of Appeals, Seventh Circuit.

Argued May 18, 2022

Decided August 16, 2022

Kelsey Massa, William L. McCoskey, Brian L. Reitz, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Terry Tolliver, Attorney, Brattain Minnix Garcia, Indianapolis, IN, for Defendant-Appellant.

Before Hamilton, Brennan and Kirsch, Circuit Judges.

Hamilton, Circuit Judge.

Appellant Nain Galvan, a citizen of Honduras, was arrested in possession of a handgun after robbing his employer and threatening several people at an apartment complex. He was later charged with and pled guilty to illegally possessing a firearm. At sentencing, the district court applied the guideline provisions for robbery because it found that Galvan used the same handgun in committing a robbery about two hours earlier. Galvan appeals, arguing that the district court erred in factual findings essential to its application of the Sentencing Guidelines. We affirm.

I. Factual and Procedural Background

Galvan worked part-time for Asencio Gomez in construction near Indianapolis. When necessary, Gomez would occasionally let Galvan and others borrow one of his work vans to assist with a project. On October 21, 2017, Galvan borrowed a van from Gomez because Galvan's own vehicle had broken down. The next day, he drove to Gomez's home to return the vehicle. Galvan gave the keys to Gomez and shared a meal with Gomez and his family. For unknown reasons, Galvan eventually pulled out a handgun, fired several shots, took the keys from Gomez's pocket, and drove away in the van. Gomez immediately called the police and reported a robbery.

Less than two hours later, police received a report of a man with a gun at an apartment complex. Galvan had threatened several men in the complex while brandishing a handgun. When police arrived, they found Galvan leaning on the driver's side of Gomez's stolen van. Police arrested Galvan, and one of the officers found a handgun in the driver's seat. Galvan was later charged with and pled guilty to possessing that handgun as an alien unlawfully in the United States, in violation of 18 U.S.C. § 922(g)(5).

At a combined plea and sentencing hearing, the district court first accepted Galvan's guilty plea but then decided that a second hearing was needed to consider evidence relevant to Galvan's sentence. At that time, Galvan faced a pending charge in state court for armed robbery of Gomez's van, but that charge was later dismissed. At the second sentencing hearing, the district court heard testimony from both Gomez and the detective who investigated the robbery.

The district court then made several findings about how to apply the Sentencing Guidelines to Galvan's case. The court found that the guideline for robbery governed Galvan's firearm-possession offense because he had used the same handgun when he robbed Gomez. See U.S.S.G. §§ 2B3.1(a) & 2K2.1(c)(1)(A). The court also found that Galvan had fired the handgun in connection with the robbery, which increased his offense level by seven. These and other guideline findings raised Galvan's total offense level from 14 to 26. With Criminal History I, Galvan's guideline sentencing range was 63 to 78 months in prison. The district court sentenced Galvan to 70 months in prison and two years of supervised release. Galvan did not file a timely appeal, but he later filed a motion under 28 U.S.C. § 2255 asserting in part that his counsel was ineffective for failing to file a notice of appeal when asked. The district court granted the motion, reissued the judgment, and entered his notice of appeal.

II. Analysis

The parties debate whether Galvan waived, forfeited, or properly preserved for appeal the issues he raises. "Waiver occurs when a party intentionally relinquishes a known right; forfeiture, in contrast, occurs as a result of a negligent failure timely to assert a right." United States v. Hyatt , 28 F.4th 776, 781 (7th Cir. 2022). If a defendant has "sound strategic reasons" to forgo an argument in the district court, that points toward waiver. Id. , quoting United States v. Dridi , 952 F.3d 893, 898 (7th Cir. 2020). We do not consider waived arguments, but we may assess forfeited arguments for plain error. Id. ; see also Fed. R. Crim. P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). We do not find waiver here, and the outcome of this appeal does not turn on the difference between standards of review for preserved and forfeited issues.

A. Determining Galvan's Base Offense Level

First, Galvan argues that the district court erred in setting the base offense level for his sentence because there was insufficient evidence that he used the same firearm in his federal possession offense and the robbery of Gomez. Galvan was convicted of violating 18 U.S.C. § 922(g)(5), which would ordinarily call for a base offense level of 14. U.S.S.G. § 2K2.1(a)(6). However, the district court applied § 2K2.1(c)(1)(A) :

(c)(1) If the defendant used or possessed any firearm ... cited in the offense of conviction in connection with the commission ... of another offense[,] ... apply—

(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above ....

The guideline for attempt, solicitation, or conspiracy provides that the base offense level should be the "base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty." § 2X1.1(a).

Here, applying the cross-reference in § 2K2.1(c)(1)(A), the district court found that the higher offense level of 20 for robbery governed rather than the base offense level of 14 for possessing a handgun as an alien unlawfully in the United States because Galvan used the firearm from his possession conviction "in connection with" his robbery of Gomez. See §§ 2B3.1(a), 2K2.1(a)(6), & 2K2.1(c)(1)(A). The court also considered specific offense characteristics for Galvan's firearms offense under the robbery guideline based on this cross-reference.¹

Galvan contends that this cross-reference should not apply because the district court "did not point to specific pieces of evidence giving reason to believe that the same firearm was possessed during Mr. Galvan's [robbery of Gomez]." At best, however, Galvan has forfeited this issue. The government points out that Galvan had a strategic reason not to question whether the same gun was used in the offense of conviction and in his robbery. At sentencing, Galvan admitted to firing a gun while at Gomez's home. Any argument that the gun he fired was different from the handgun cited in the offense of conviction would necessarily imply that Galvan violated § 922(g)(5) again with a second firearm that day. This two-gun scenario sounds more like an aggravating factor during sentencing, not a mitigating one.

Even so, we construe waiver principles liberally in the defendant's favor. United States v. Butler , 777 F.3d 382, 387 (7th Cir. 2015). Galvan stopped short of expressly admitting during sentencing that the firearm he discharged at Gomez's home was the same handgun found in his vehicle when he was arrested. This issue is best characterized as forfeited by Galvan's failure to raise it during sentencing, so we review it for plain error, Hyatt , 28 F.4th at 781, but we would reach the same result if Galvan had preserved the issue. We have discretion to remedy a plain error at sentencing when: (1) "there is an error ‘that has not been intentionally relinquished or abandoned’ "; (2) "the error is ... ‘clear or obvious’ "; (3) "the error ‘affected the defendant's substantial rights[,]’ " i.e., it affected the outcome of the proceedings in the district court; and (4) "the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ " United States v. Hopper , 934 F.3d 740, 766 (7th Cir. 2019), quoting Molina-Martinez v. United States , 578 U.S. 189, 194, 136 S.Ct. 1338, 194 L.Ed.2d 444 (2016).

Galvan's argument fails at the first step of plain-error analysis because there was no error. The court needed to find by a preponderance of the evidence that the handgun cited in Galvan's offense of conviction was the same handgun used "in connection with" the robbery of Gomez. See U.S.S.G. § 2K2.1(c)(1)(A) ; United States v. Major , 33 F.4th 370, 379 (7th Cir. 2022). The court did so.

When discussing the application of the Guidelines during Galvan's second sentencing hearing, the district court noted that it "must also consider whether the firearm used was the same firearm." After describing the events that transpired, the district court found it more likely than not that all the enhancements applied, including the greater offense level resulting from use of the same gun "in connection with" the robbery. At no point did Galvan object to the finding that the same firearm was used. He argued instead that the firing of the gun did not occur in connection with a robbery.

Ample evidence supported the court's finding that the same gun was involved in both episodes. Gomez testified at sentencing that Galvan pulled out and discharged a handgun while at Gomez's home. Less than two hours later, the arresting officer found a handgun in the front seat of the van Galvan had stolen. The district court was justified in finding only one firearm was used, and Galvan never actually suggested otherwise. The district court did not explain this fact determination in detail, but we do not expect district courts to dwell on issues that are not contested at sentencing. E.g., United States v. Longstreet , 567 F.3d 911, 928–30 (7th Cir. 2009) (affirming district court's determination of drug quantity attributable to defendant where defe...