In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-1731 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ANTHONY LOREN GARDNER, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court 

for the Central District of Illinois. 

No. 17-cr-40054 — Sara Darrow, Chief Judge. 

____________________ 

ARGUED MAY 21, 2019 — DECIDED SEPTEMBER 30, 2019 

____________________ 

Before FLAUM, KANNE, and SYKES, Circuit Judges. 

SYKES, Circuit Judge. 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. 
2 No. 18-1731 

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. 

I. Background 

On April 22, 2017, Gardner was with his friend Davion 

Gary in front of Gary’s house in East Moline, Illinois, when 

he spotted a silver Jeep circling the block. Gardner was 

suspicious because his friend was having problems with a 

rival street gang. The two men went inside Gary’s house, but 

they soon saw the Jeep circle the block once more. Almost 

immediately Gardner heard gunshots. At that point he went 

outside with a semiautomatic handgun and fired shots at the 

Jeep. 

Moments later a second vehicle stopped at a stop sign 

after passing Gary’s house. Gardner wasn’t sure if this 

vehicle was associated with the Jeep, but he didn’t wait to 

find out. He fired at the second vehicle and then jumped into 

a car driven by his friend Jennifer Winterbottom. When 
No. 18-1731 3 

Gardner saw the second vehicle in the side mirror, he assumed it was following him. He got out of Winterbottom’s 

car and again fired at the vehicle. 

Officers responding to the shooting stopped Winterbottom’s car, arrested Gardner, and seized a loaded handgun along with ammunition. When the officers told Gardner 

that the driver of the second vehicle wasn’t involved with 

the rival gang, he remarked, “Thank God I wasn’t aiming at 

him.” 

Gardner was indicted for possessing a firearm as a felon. 

See 18 U.S.C. § 922(g)(1). While in pretrial custody at the 

Rock Island County Jail, he engaged in additional violent 

behavior. Gardner 

 spat in the direction of a guard; 

 threatened to strike any guard that entered his cell; 

 sent a fellow inmate to the emergency room with a 

punch to the face; 

 confronted an inmate eating lunch and “started 

swinging his fists”; and 

 snuck into an inmate’s cell and began punching and 

kicking him. 

Because of this conduct, the U.S. Marshal’s Service eventually transferred Gardner to the Knox County Jail. 

While awaiting trial Gardner underwent a telephonic 

psychological evaluation and was diagnosed with major 

depression, obsessive-compulsive disorder, and chronic 

posttraumatic stress syndrome. He eventually pleaded guilty 

and his attorney referred him for a second mental-health 

evaluation. Dr. Kirk Witherspoon, a clinical psychologist, 
4 No. 18-1731 

noted Gardner’s depression and past suicide attempts. He 

found that Gardner “appears to [have] borderline personality disorder traits, i.e., a propensity toward marked impulsivity and reactivity without sufficient forethought or moral 

compunction.” 

The case proceeded to sentencing in March 2018. The 

§ 922(g) offense carries a Guidelines base offense level of 14. 

See U.S.S.G. § 2K2.1(a)(6). But the base offense level increases 

if the defendant has one or more convictions for a “crime of 

violence” or a controlled substance offense. Id. § 2K2.1(a)(1)–

(4). Gardner has a lengthy criminal record, including multiple burglaries. Until fairly recently, burglary was among the 

offenses listed in the Guidelines’ definition of “crime of 

violence.” In August 2016, however, the Sentencing Commission removed burglary from the definition. See U.S.S.G. 

app. C, AMEND. 798, at 118 (Supp. Nov. 1, 2018). The Commission cited several reasons for the change, including 

“several recent studies” showing that “most burglaries do 

not involve physical violence.” Id. at 122. 

Although the Commission removed burglary from the 

definition of crime of violence, it added this commentary: 

There may be cases in which a burglary involves violence[] but does not qualify as a 

“crime of violence” as defined in § 4B1.2(a) 

and, as a result, the defendant does not receive 

a higher offense level or higher Criminal History Category that would have applied if the 

burglary qualified as a “crime of violence.” In 

such a case, an upward departure may be appropriate. 
No. 18-1731 5 

Id. at 119; U.S.S.G. § 4B1.2 cmt. n.4. 

Accordingly, Gardner’s presentence report (“PSR”) began with a base offense level of 14, added six levels for other 

specific offense characteristics, and subtracted three levels 

for acceptance of responsibility, yielding a total offense level 

of 17. Combined with a Criminal History Category of IV, 

Gardner’s Guidelines sentencing range was 51 to 63 months. 

The PSR added, however, that Gardner’s 2011 residential 

burglary involved violence, which may warrant the judge’s 

consideration of an above-Guidelines sentence. 

Gardner’s attorney agreed with the range calculation but 

objected to the PSR’s suggestion that the judge consider an 

above-Guidelines sentence. So the government presented 

testimony from former Rock Island County Investigator 

Jason Patterson, who had interviewed the victim of the 2011 

burglary. Patterson explained that the victim described a 

break-in at his home by two masked men in which both 

burglars struck him, and one used a blunt object to hit him 

in the head. 

Based on this testimony and other information in the 

PSR, the judge determined that the burglary involved violence. She then heard arguments about the sentencing 

factors in 18 U.S.C. § 3553(a). The government asked for an 

above-Guidelines sentence of 92 months. Gardner’s attorney 

argued for a sentence within the Guidelines range. Gardner 

addressed the court and said he was ready to change. 

The judge then painstakingly weighed the aggravating 

and mitigating factors under § 3553(a). Regarding the 2011 

residential burglary, the judge expressed her sense that “it 

should be treated the way that it used to be by the 
6 No. 18-1731 

[G]uidelines and factored into [Gardner’s] base offense level, 

and I think that’s a better reflection of your criminal history[,]” which would correspond to “a [G]uideline[s] [range] 

of 92 to 115 months.” She went on to discuss the alarming 

circumstances of the offense, Gardner’s serious criminal 

history, his mental-health issues, and his aggressive behavior in pretrial custody. In the end, the judge settled on an 

above-Guidelines sentence of 100 months in prison. 

II. Discussion 

This appeal raises claims of procedural error, so our review is de novo. United States v. Kuczora, 910 F.3d 904, 907 

(7th Cir. 2018). 

Gardner first argues that the judge impermissibly applied a noncategorical approach when evaluating his 2011 

residential burglary. Rather than limiting her analysis to the 

small universe of materials authorized by Shepard v. United 

States, 544 U.S. 13 (2005), and Taylor v. United States, 495 U.S. 

575 (1990), the judge relied on information in the PSR and 

testimony from Investigator Patterson to conclude that the 

2011 burglary involved violence against the victim. Gardner 

challenges the use of this noncategorical, fact-specific analysis, which he says led the judge to classify his 2011 burglary 

as a crime of violence and increase his base offense level 

accordingly. 

But the judge did not increase Gardner’s base offense level based on the 2011 burglary. Rather, she accepted, without 

objection, the PSR’s Guidelines calculations and the resulting 

sentencing range. She then moved on to determine how 

much weight the 2011 burglary deserved in connection with 

her exercise of discretion in evaluating the § 3553(a) factors. 
No. 18-1731 7 

Gardner insists that the judge recalculated the Guidelines 

range based on the commentary contained in the new Application Note 4 to § 4B1.2, which accompanied the removal of 

burglary from the crime-of-violence definition. To be sure, 

the judge said that Gardner’s 2011 burglary “should be 

treated the way that it used to be by the [G]uidelines and 

factored into [Gardner’s] base offense level,” which would 

have produced a Guidelines range of 92 to 115 months. This, 

in the judge’s view, would more accurately capture his 

dangerousness. 

But that doesn’t mean the judge calculated a new Guidelines range. She simply explained her decision to impose an 

above-Guidelines sentence by analogy to the old Guidelines. 

See United States v. Griffith, 913 F.3d 683, 688 (7th Cir. 2019) 

(“In context, however, it is clear that the court was not ... 

correct[ing] the [G]uidelines calculation but rather was 

expressing disagreement with the properly calculated 

[G]uidelines sentence.”). The sentencing transcript shows 

that everyone understood this point. Indeed, Gardner’s 

attorney repeatedly objected to using the 2011 burglary 

conviction as a “basis to vary upward.” 

Still, we take this opportunity to reiterate two points 

about sentencing methodology. First, we have repeatedly 

explained that the concept of a “departure” in Guidelines 

sentencing is “obsolete” and “beside the point” after United 

States v. Booker, 543 U.S. 220 (2005). United States v. Walker, 

447 F.3d 999, 1006 (7th Cir. 2006). Discretion has replaced 

formal departure analysis in post-Booker sentencing, and the 

rules that apply to offense-level increases and criminalhistory points on the sentencing grid do not apply to the 

judge’s assessment of the § 3553(a) factors. Second, it’s “not 
8 No. 18-1731 

necessary for the court to analogize to the [G]uidelines when 

explaining [a] ... variance” from the Guidelines range. 

Griffith, 913 F.3d at 689. “[A]s long as a judge uses a properly 

calculated Guidelines range as a starting point, [the judge] 

may explain a decision to vary from that range with reference to the statutory factors alone.” Kuczora, 910 F.3d at 908. 

Next, Gardner argues that the judge failed to adequately 

address his mental-health challenges. This argument is 

waived. In United States v. Garcia-Segura, we encouraged 

district judges to specifically inquire whether the defendant 

is satisfied that the court has addressed all arguments in 

mitigation. If the answer is “yes,” “a later challenge for 

failure to address a principal mitigation argument ... [is] 

waived.” 717 F.3d 566, 569 (7th Cir. 2013); accord United States 

v. Rosales, 813 F.3d 634, 638 (7th Cir. 2016). That’s what 

happened here. The judge specifically asked Gardner’s 

counsel if she had adequately addressed all of his principal 

arguments in mitigation, and he said, “Yes.” The judge also 

asked if counsel wanted any further elaboration of the 

sentence, and counsel responded, “No, thank you.” That’s a 

waiver. See United States v. Waldrip, 859 F.3d 446, 449 (7th Cir. 

2017). 

Finally, Gardner contends that the judge relied on “unreliable reporting” in the PSR about his conduct in pretrial 

custody. Plain-error review applies because Gardner did not 

object to the information in the PSR when given an opportunity to do so. See United States v. Corona-Gonzalez, 628 F.3d 

336, 340 (7th Cir. 2010). So he must show a “clear” or “obvious” error that affected his substantial rights. See United 

States v. Pankow, 884 F.3d 785, 791 (7th Cir. 2018). 
No. 18-1731 9 

He hasn’t come close to doing so. Gardner criticizes the 

PSR’s “scant detail,” but he never fills in the alleged gaps. 

He quibbles about the number of times he was actually cited 

for misconduct in the jail, but the judge didn’t rely on a tally. 

Rather, she merely described his conduct and noted that it 

was consistent with someone who has a history of violent 

outbursts. He also quarrels about the nuances of the judge’s 

characterizations of his behavior. We see no error, let alone 

plain error, which is one that is clear, not “subtle, arcane, [or] 

debatable.” United States v. Ramirez, 783 F.3d 687, 694 (7th 

Cir. 2015). 

AFFIRMED