United States v. Gates, 21-3314

51 F.4th 271

UNITED STATES of America, Plaintiff-Appellee,

v.Travis GATES, Defendant-Appellant.

No. 21-3314

United States Court of Appeals, Seventh Circuit.

Argued September 30, 2022

Decided October 19, 2022

Pamela Sarah Domash, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Thomas A. Brodnik, Attorney, McNeely Law LLP, Indianapolis, IN, for Defendant-Appellant.

Before Wood, St. Eve, and Kirsch, Circuit Judges.

St. Eve, Circuit Judge.

Travis Gates embarked on a multi-day spree of vandalism, threats, and violence directed at his ex-girlfriend, culminating in Gates firing several shots in her direction. He was arrested and pleaded guilty to being a felon in possession of a firearm. The district court calculated the advisory Sentencing Guidelines range as 18–24 months in prison but sentenced Gates to 48 months, an upward variance Gates challenges on appeal. Because Gates's sentence was procedurally sound and substantively reasonable, we affirm.

I. Background

In September 2020, soon after Gates split up with his girlfriend, B.F., he began violently threatening her. On September 22, B.F. discovered a broken car window near the house where she was staying. Three days later, someone tried to set the house on fire. On September 28, one of the house's windows was broken; Gates was arrested nearby for disorderly conduct but released after a few hours.

Shortly after midnight on September 29, Gates called B.F. to say, "I posted bond, bitch. I'm on my way." She looked outside and saw Gates across the street. He fired five shots in her direction, then fled. Police arrived and stationed themselves nearby, but they left to pursue a car they suspected contained Gates. He was not in the car, and when the officers returned to their posts, B.F. informed them that Gates had called again, saying he was on her front porch. After Gates called a third time to say he was coming to "bust you down," a woman drove Gates past the house. He leaned out the passenger-side window and shot at B.F. again. Police stopped the car and arrested Gates.

Gates was charged with, and pleaded guilty to, being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The presentence report ("PSR") recounted Gates's extensive 25-year criminal history. Prior to the felon-in-possession charge, Gates had two juvenile adjudications, six misdemeanor and two felony convictions, three sets of pending charges, and seven other arrests. Additionally, in 2016, the mother of two of Gates's children received a one-year order of protection against Gates based on domestic violence allegations. September 2020 saw an uptick in Gates's criminal activity. In the weeks before he shot at B.F., he was arrested for domestic violence and was charged with drunk driving.

Despite Gates's long criminal record, the Guidelines assigned him just one criminal history point, placing him in the lowest criminal history category. His offense level was 15, which incorporated a four-level increase for using a firearm in connection with a felony offense. The advisory Guidelines range was 18–24 months in prison. The government sought an upward variance to 60 months. Gates requested a within–Guidelines sentence, arguing that the Guidelines adequately took his criminal history and the circumstances of the offense into account. Gates also emphasized the importance of his children and his desire to return home to care for them.

After adopting the PSR's findings,¹ the district court determined that an upward variance was appropriate. The court found Gates's mitigating arguments unconvincing, particularly his claims about the importance of his children. The court said the most important thing a father can do for his children is to love their mother, but Gates was "not very good to their mother, at least the mother of two of them whom you were threatening."² The court cited several 18 U.S.C. § 3553(a) sentencing factors to justify the upward variance. The court noted Gates's history and characteristics under § 3553(a)(1), observing that it was a "miracle" Gates wound up in the lowest criminal history category given his extensive criminal history; the court also mentioned the order of protection. The court explained that the nature and circumstances of the offense, § 3553(a)(1), further supported an upward variance because Gates's behavior represented a "pattern of escalating violence" and Gates acted "to terrorize" B.F. Last, the court referenced § 3553(a)(2)(A) and (C), explaining that an above–Guidelines sentence was necessary "to protect the public" and "to provide a reminder that this kind of behavior and this course on which you've been journeying is unacceptable." The court then sentenced Gates to 48 months in prison. Gates appealed.

II. Discussion

We review a criminal sentence in two steps. We begin by reviewing the district court's sentencing procedures de novo. United States v. Swank , 37 F.4th 1331, 1334 (7th Cir. 2022). The district court must "(1) correctly calculate the applicable guidelines range; (2) give meaningful consideration to the § 3553(a) factors and any nonroutine sentencing arguments raised by the defense; and (3) state the factors on which the sentence is based." Id. (quoting United States v. Greene , 970 F.3d 831, 834 (7th Cir. 2020) ). If the sentence is procedurally sound, we review its substantive reasonableness for abuse of discretion. United States v. Walsh , 47 F.4th 491, 496 (7th Cir. 2022). We do not presume an above-Guidelines sentence is unreasonable, id. , and we give deference to carefully explained variances, United States v. Dickerson , 42 F.4th 799, 806 (7th Cir. 2022).

Gates's procedural arguments lack merit. First, he argues that the district court's discussion of the 2016 order of protection shows that he was "sentenced, at least in significant part, on mere allegations and not facts found by any tribunal." This argument fails because Gates did not contest any of the facts related to the order, nor did he challenge the underlying allegations. The district court was thus entitled to rely on the PSR's findings about the order. Second, Gates argues that the district court was required to consider whether to impose an upward departure within the Guidelines framework before applying the § 3553(a) factors or, in the alternative, that we should adopt this requirement. But our precedent is clear: a court "may ground...