### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 21-3314
U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

T RAVIS G ATES , Defendan t-Appel lant

.

____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division

. No. 20

- cr

- 00284 — Sarah Evans Barker , Judge

.

____________________
A RGUED S EPTEMBER 30, 2022

— D ECIDED O CTOBER 19, 2022

____________________

Before W OOD , S T

. E VE , and K IRSCH , Circuit Judges

. S T

. E VE , Circuit Judge

. Travis Gates embarked on a multiday spree of vandalism, threats, and violence directed at his

ex

- girlfriend , culminating in Gates firing several shots in her direction . He was arrested and p leaded 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 month s , an upward variance Gates2 No. 21-3314

challenges on appeal

. Because Gates’s sentence was procedurally sound and substantively reasonable , we affirm.
I. BackgroundIn 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 t o 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.” S he looked outside and saw Gates across the street

. He fire d five shots in her direction , then fle d. Police arrived and stationed themselves nearby , but t hey 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 presen tence report ( “PSR” ) recounted Gates’s extensive 25 -year criminal histor y . P rior 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 orderNo. 21-3314 3

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 j ust 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 offens e. 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 courtfound Gates’s mitigating arguments unconvincing, particularly his claims about the importance of his children. T he 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 1 8 U.S.C. § 3553(a)

1 Gates did not object to the Guidelines

- range calculation but raised one objection to the PSR’s factual findings : Gates said he “shot more toward the air,” not “directly at” B.F. The district court revised its finding to that Gates “fired in her direction.” Gates made no further objection.

2 The record is unclear on this point, but the court may have mistakenly believed B.F. wa s the mother of two of Gates’s children. Gates does not argue that th e possible misidentification constitutes reversible error,4 No. 21-3314

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 g iven his extensive criminal history ; t he court also mentioned the order of protectio n. The court explained th at 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 unacceptabl e.” The court then sentence d 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 Unit ed 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

- Guidelin es sentence is

and our decision would not change if he did because the court did not rely on the victim’s identity when deciding Gates’s sentence.No. 21-3314 5

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 arguesthat 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 factsrelated 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

a pplying the § 3553(a) factors or, in the alternative, that we should adopt this requirement. But o ur precedent is clear : a court “may ground its justification by reference to the section 3553(a) factors alone and need not ‘frame its explanation in terms of a departure from the guidelines range.’” United States v. Gonzale z , 3 F.4th 963, 966 (7th Cir. 2021) (quoting United States v. Vasquez

- Abarca , 946 F.3d 990, 994 (7th Cir. 2020)). Gates fares no better challenging the substance of his sentence. In several different ways, Gates argues that the district court abused its discretion by imposing an upward variance based on conduct the Guidelines already took into account. This argument misses the point of the § 3553(a) factors, which permit a district court to “ deviate from the guidelines, so long as it offers an adequate statement of its reasons.” Gonzalez , 3 F.4th at 965 (citations omitt ed). That is precisely what the court did here, thoroughly explaining why the § 3553(a) factors supported an upward variance . It noted that the lowest criminal history categor y did not capture Gates’s history and6 No. 21-3314

characteristics under § 3553(a)(1), pointi ng to “the frequency with which you have violated the law ... in a serious fashion sometimes, and sometimes just an irritatingly frequent basis. You just never seem to get the message.” Also under § 3553(a)(1), the court found that the nature and circumstanc es of the offense justified the upward variance . T he court observed that “the last time you were incarcerated and you got out, you posted bond, you called and said ‘I’m coming.’ And you went with a firearm and you did the terrorizing acts.” The court characterized Gates’s conduct as “ culminating, recurring, escalating violence

... . That’s what worries me because th ose things are not folded into the guidelines.” Itadded that there was a heightened need “to protect the public” and “to provide a reminder that this kind of behavior ... is unacceptable,” referring to § 3553(a)(2)(A) and (C). This explanation was more than adequate ; thus, the court did not abuse its discretion by sentencing Gates to 48 months in prison.
III. Conclusion

T he district court committed no procedural error and imposed a substantively reasonable sentence. Its judgment is therefore
A FFIRMED

.