In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-2638 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

JAMES ROGERS, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division. 

No. 1:19-cr-00308 — Jane Magnus-Stinson, Judge. 

____________________ 

ARGUED MAY 25, 2022 — DECIDED AUGUST 12, 2022 

____________________ 

Before RIPPLE, ROVNER, and JACKSON-AKIWUMI, Circuit 

Judges. 

RIPPLE, Circuit Judge. Federal law prohibits James Rogers 

from possessing any firearms because of his previous felony 

convictions. Nevertheless, based on an investigation in July of 

2019, law enforcement concluded that he had enlisted an accomplice to purchase firearms for him. A jury subsequently 

convicted him of two counts of being a felon in possession of 

a firearm in violation of 18 U.S.C. § 922(g). The district court 
2 No. 21-2638 

then sentenced him to 70 months’ imprisonment. For the reasons set forth in this opinion, we now affirm the judgment of 

the district court. 

I 

BACKGROUND

On July 12, 2019, Mr. Rogers, along with a friend, A.W., 

went to the Rural King store in Bedford, Indiana. The store’s 

video surveillance system recorded Mr. Rogers as he handled 

multiple firearms, including a Mossberg shotgun. The video 

recorded his holding the Mossberg for less than a minute before handing it back to the Rural King sales employee. The 

employee then placed it under the counter. A few minutes 

later, A.W. went to the sales counter, indicated that she 

wanted to purchase the Mossberg, provided her ID, and filled 

out a Form 4473. The Rural King manager came from the back 

of the store, carrying a box with a Mossberg shotgun in it. 

A.W. paid for the shotgun, and the manager walked both her 

and Mr. Rogers to the parking lot. 

One week later, Mr. Rogers and A.W. went to another Rural King in Bloomington, Indiana. Again, Mr. Rogers approached the gun counter by himself and inspected several 

firearms, including a Sig Sauer 400 rifle. A.W. later joined him 

at the gun counter and purchased the rifle. The manager then 

escorted them out of the store. 

Following these purchases, law enforcement officers received a tip that Mr. Rogers and A.W. were purchasing firearms with gift cards obtained from stolen merchandise that 

had been returned fraudulently to the store. While investigating the theft, the officers reviewed the security footage of the 

sales of the two firearms at the Rural King stores and 
No. 21-2638 3

concluded that A.W. was purchasing the firearms for 

Mr. Rogers. A Bloomington Police officer interviewed A.W. 

and Mr. Rogers. During her interview, A.W. denied knowing 

the location of the Sig Sauer rifle. But Mr. Rogers, when interviewed by the same officer, told him that the rifle was under 

the couch in A.W.’s living room and noted that it was still inside the box. Bloomington police officers recovered the Sig 

Sauer rifle from that location. Officers also recovered the 

Mossberg shotgun from A.W.’s residence that same day. 

On September 17, 2019, a grand jury charged Mr. Rogers 

with five counts: one count of conspiracy, two counts of aiding and abetting the making of a false statement to a licensed 

firearms dealer, and two counts of being a felon in possession

of a firearm. The Government then filed a motion to dismiss 

without prejudice the first three counts of the indictment, and 

the district court granted the motion. Consequently, only the 

two counts of felon in possession were presented to the jury 

at trial. Mr. Rogers’s first trial occurred in November 2020 but 

ended in a mistrial when the jury could not reach a unanimous verdict. 

A second jury trial was held on July 13, 2021. In presenting 

its case, the Government first assumed that Count I (the Mossberg shotgun) charged Mr. Rogers with possessing the shotgun he was recorded holding in the surveillance video at the 

Bedford Rural King. But when Mr. Rogers’s attorney crossexamined the store associate who had sold the Mossberg shotgun to A.W., it became evident that two separate Mossberg 

shotguns were involved in the Bedford incident: The first 

Mossberg was the one that Mr. Rogers personally handled; 

the second Mossberg was the one retrieved by the manager 

from the back of the store and sold to A.W. A law enforcement 
4 No. 21-2638 

witness admitted at trial that they were not aware that the incident had involved two different Mossberg shotguns in the 

store.1

At the close of the Government’s case, Mr. Rogers moved 

for the dismissal of Count I of the indictment under Rule 29.2

Mr. Rogers submitted that he, and the jury, were entitled to 

know whether he was being charged with possessing the unpurchased firearm that he had held in the store or the purchased firearm that left the store (identified as Government 

Exhibit 2 at trial). He expressed the concern that some jurors 

might convict him for solely possessing the gun that he had 

held in the store while others might convict him of jointly possessing the gun that was purchased. The Government simply 

responded that the indictment charged Mr. Rogers with possessing “a Mossberg shotgun,” which was still what the evidence demonstrated.3

 

After a colloquy with counsel, the district court determined that defense counsel had raised two separate concerns. 

Counsel first suggested that the indictment was invalid because it was impossible to ascertain whether the grand jury 

intended to accuse Mr. Rogers of possessing the gun that he 

had handled at the counter or the gun purchased by A.W. 

1 R.121 at 121, 125. 

2 “A trial judge, upon a defendant’s motion or on the judge’s own initiative, ‘must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction,’ either after the government 

has closed its evidence or after a jury has rendered a verdict or been discharged.” United States v. Garcia, 919 F.3d 489, 496 (7th Cir. 2019) (quoting 

Fed. R. Crim. P. 29(a)).

3 R.121 at 138; see also R.64.
No. 21-2638 5

shortly thereafter. Counsel also submitted that the indictment 

deprived him of due process of law because he had no notice 

of which alleged firearm possession he had to defend against. 

The court addressed each of these arguments. With respect to the first argument, the court said that it was clear that 

the grand jury intended to indict Mr. Rogers with possession 

of the gun purchased by A.W. The court noted that, given the 

charges handed down by the grand jury—“all of that conspiracy and setting up the straw man”—it was clear that the 

grand jury focused on a theory of joint possession of the purchased Mossberg. The district judge explained “these guns 

were purchased with the female companion as a straw purchaser, and I think the Grand Jury, given that they did indict 

on those theories, kind of necessarily found joint possession, 

it seems to me.”4

 

The district court then turned to the risk that Mr. Rogers 

had not been given adequate notice that the Government intended to proceed on the basis of the purchased gun. Characterizing the problem as one of duplicity,5 it stated that, “it is 

the joining of two or more offenses in a single count because 

clearly here, the possession of the purchased Mossberg is different than the possession of the unpurchased Mossberg.”6

In 

order to avoid any unfairness from lack of notice, the court 

4 R.121 at 146–47.

5 Although, as we discuss later on, the district court’s characterization of 

the situation before it as one of duplicity is questionable, at least insofar as 

it was based on the existence of two guns rather than one, it certainly did 

not cause reversible error.

6 Id. at 144.
6 No. 21-2638 

then required the Government to choose which firearm it was 

going to prove in front of the jury: “[y]ou have to pick—less 

than picking a gun—you have to pick a possession that you’re 

charging; and whether it is the one in the store or the joint 

possession, that is your call.”7 The Government chose to 

prove, under a theory of joint possession, that Mr. Rogers possessed the Mossberg purchased by A.W. In due course, the 

district court instructed the jury that in order to find Mr. Rogers guilty of Count 1, it had to find he “knowingly possessed 

a firearm; specifically, the firearm that is Exhibit 2,” which 

was the Mossberg purchased by A.W.8

 

Following the rendition of the jury’s verdict, the probation 

office prepared a Presentence Report (“PSR”) for the sentencing hearing. That report recommended a base offense level of 

20 under U.S.S.G. § 2K2.1(a)(4)(B) because Count II (the Sig 

Sauer count) involved a firearm capable of accepting a highcapacity magazine.9

Mr. Rogers objected to the recommendation, stating that he did “not believe a high capacity magazine 

[was] involved in his case.”10 In his view, the jury’s verdict 

was based on “what happened at the gun counter, which did 

7 Id. at 145.

8 Id. at 159.

9 “(a) Base Offense Level (Apply the Greatest): (4) 20, if— (B) the (i) offense 

involved a (I) semiautomatic firearm that is capable of accepting a large 

capacity magazine; or (II) firearm that is described in 26 U.S.C. § 5845(a); 

and (ii) defendant (I) was a prohibited person at the time the defendant 

committed the instant offense; (II) is convicted under 18 U.S.C. § 922(d); 

or (III) is convicted under 18 U.S.C. § 922(a)(6) or § 924(a)(1)(A) ... .” 

U.S.S.G. § 2K2.1(a)(4)(B). 

10 R.106.
No. 21-2638 7

not include any kind of a magazine whatsoever.”11 He did not 

believe that his base offense level should be increased by six 

points because “someone else later came and purchased a gun 

that did have a magazine on it.”12 The Government responded 

that it presented evidence of joint possession of the Sig Sauer 

rifle for Count II and noted that a case agent confirmed that it 

was sold with a 30-round magazine. In its supplemental addendum to the PSR, the Probation Department also noted that 

the purchase of the high-capacity magazine was confirmed by 

the case agent. 

The district court overruled Mr. Rogers’s objection. It saw 

a clear connection between him and the Sig Sauer rifle, noting 

that he had provided specific instructions to law enforcement 

on where to find it and those instructions were correct. Thus, 

the court found that he had jointly possessed the gun that was 

purchased with a high-capacity magazine. Mr. Rogers was ultimately sentenced to 70 months’ imprisonment. Mr. Rogers 

timely appealed his conviction and sentence. 

11 R.125 at 7.

12 Id.
8 No. 21-2638 

II

DISCUSSION

A.

1. 

Focusing on the Mossberg count, Mr. Rogers now renews 

his argument that a constructive amendment of his indictment occurred at trial. Reminding us that “a defendant may 

be tried for a felony only on the charges the grand jury approved, as it approved them, and no others,” United States v. 

Leichtnam, 948 F.2d 370, 375 (7th Cir. 1991), he submits that 

because the Government was unaware that two Mossberg 

shotguns were involved in the incident, the grand jury must 

have indicted him for the possession of the unpurchased Mossberg at the Bedford Rural King. The Government’s evidence 

at trial, however, sought to prove his joint possession of the 

purchased Mossberg. Thus, in Mr. Rogers’s view, the broad 

language of the indictment, the evidence offered at trial, the 

jury instructions, and the jury verdict form caused him to be 

tried and convicted on a charge never sanctioned by the grand 

jury. 

The Government takes a different view. It responds that 

the indictment charged Mr. Rogers with possessing “one 

Mossberg shotgun” on or about July 12, 2019, and that language naturally encompasses any form of possession of a 

Mossberg shotgun. Thus, the Government contends that “[a]t 

worst, this case involves a harmless variance.”13

13 Appellee’s Br. 16. 
No. 21-2638 9

“A constructive amendment to an indictment occurs when 

either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for 

conviction beyond those presented by the grand jury.” 

United States v. Cusimano, 148 F.3d 824, 829 (7th Cir. 1998) (citation omitted). 

An indictment that is constructively amended at 

trial violates the Constitution because the Fifth 

Amendment requires an indictment of a grand 

jury to guarantee that the allegations in the indictment and the proof at trial “match in order 

to insure that the defendant is not subject to a 

second prosecution, and to give the defendant 

reasonable notice so that he may prepare a defense.” 

United States v. Trennell, 290 F.3d 881, 888 (7th Cir. 2002) (quoting United States v. Folks, 236 F.3d 384, 390 (7th Cir. 2001)). 

Thus, the indictment may not be broadened so as to present 

the trial jury with more or different offenses than what the 

grand jury charged. See Leichtnam, 948 F.2d at 377. 

There was no broadening of the indictment here. The 

grand jury charged Mr. Rogers with possessing one Mossberg 

shotgun. At trial, it became apparent that the Bedford incident 

involved two Mossberg shotguns. Nevertheless, the record 

simply does not support the conclusion that the evidence at 

trial established a crime different from the one charged in his 

indictment. The indictment broadly charged that Mr. Rogers 

possessed a Mossberg gun in Bedford on a given date. The 

trial focused solely on whether that allegation was proven. 
10 No. 21-2638 

Mr. Rogers does not contest that the gun that he personally handled is within the ambit of the indictment. But, as the 

district court noted, the grand jury alleged a conspiracy 

charge, making it clear that it included within its allegation 

Mr. Rogers’s constructive possession of the firearm finally 

purchased by A.W. By requiring that the Government choose 

between these two theories of possession, actual and constructive, the district court hardly expanded the scope of the 

indictment. Indeed, it narrowed it.

Moreover, the facts at trial did not substantially vary from 

the factual allegations in the indictment despite the revelation 

of the second Mossberg shotgun. The indictment asserted, 

and the evidence at trial showed, that: (1) Mr. Rogers had previous felony convictions; and (2) he possessed a Mossberg 

shotgun both in the store and after leaving the store. Mr. Rogers knew the material elements of the crime and that the government would try to establish that he possessed a Mossberg 

shotgun. The instructions given to the jury adequately apprised the members of the task before them. Although 

Mr. Rogers now suggests that other instructions were necessary or preferable, he never apprised the district court of his 

views, and, consequently, he waived his objections. 

We previously have stated that “[t]he sufficiency of an indictment should be determined by practical rather than technical considerations.” Collins v. Markley, 346 F.2d 230, 232 (7th 

Cir. 1965) (en banc) (noting that “every essential ingredient of 

the offense was charged” and the defendant “was sufficiently 

apprised of the nature of the charges against him”). Here, 

Mr. Rogers’s offense under Count 1 was the possession of 

“any firearm” in violation of § 922(g). The jury unanimously 

agreed that he was a felon in possession of “any firearm” after 
No. 21-2638 11

the district court instructed the jurors to consider the purchased Mossberg shotgun for Count 1. The district court’s instructions obviated any question about adequate notice. 

2.

Despite the district court’s ruling, Mr. Rogers continues to 

maintain that the Mossberg Count is duplicitous. A charged 

count is “duplicitous if it ‘charges two or more distinct offenses within the count.’” United States v. O’Brien, 953 F.3d 

449, 454 (7th Cir. 2020) (quoting United States v. Miller, 

883 F.3d 998, 1003 (7th Cir. 2018)). “However, an indictment

charging multiple acts in the same count, each of which could

be charged as a separate offense, may not be duplicitous

where these acts comprise a continuing course of conduct that 

constitutes a single offense.” United States v. Buchmeier, 

255 F.3d 415, 421 (7th Cir. 2001). 

At the outset, the Government contends that Mr. Rogers 

waived this argument because he was aware of the existence 

of the two guns prior to trial. “Rule 12(b)(3)(B)(i) of the Federal Rules of Criminal Procedure provides that any defect in 

the indictment—including ‘joining two or more offenses in 

the same count (duplicity)’—that can be raised by pretrial motion must be so raised,” and that failure to raise the issue before trial forfeits it unless there is “good cause” for the omission. United States v. Nixon, 901 F.3d 918, 920–21 (7th Cir. 2018) 

(citation omitted). Requiring such an objection before trial encourages the parties to brief the issue carefully, “rather than 

address[ing] a complex legal issue on the fly during a trial. It 

prevents game playing.” Id. at 921. “If the indictment confused the defendant, the proper time to raise that objection 

was before trial, allowing the court an opportunity to correct 

the error and allowing the government to seek a superseding 
12 No. 21-2638 

indictment.” United States v. Davis, 471 F.3d 783, 791 (7th Cir. 

2006). 

Mr. Rogers failed to raise the issue before trial despite his 

knowledge of the second Mossberg shotgun, and he even solicited the information from a witness at trial. Thus, he was 

fully aware there were two different Mossberg shotguns involved and was aware of the risk of a duplicitous charge. Because he failed to raise an objection before the district court 

prior to trial, under usual circumstances, we would hold this 

argument waived. Here, however, the district court, in addressing Mr. Rogers’s constructive amendment argument, 

characterized the situation before it as a duplicity issue and 

resolved it on that basis. Under these circumstances, we are 

constrained to address it.

Turning to the merits, Mr. Rogers contends that his sole 

possession of the unpurchased Mossberg shotgun is a separate and distinct offense from the joint possession of the purchased Mossberg. The Government responds that Mr. Rogers’s “entire conduct in relation to a Mossberg shotgun on 

July 12, 2019, was the basis of the charge” and that it “was all 

a single course of conduct.”14 “The fact that there was one 

Mossberg shotgun in the display and another that was purchased ultimately was not an essential part of the charge.”15

In determining whether an indictment is fatally duplicitous, a court must determine whether the indictment gives 

the defendant ample notice of the allegation against which he 

must defend and whether the record produced in the 

14 Appellee’s Br. 22. 

15 Id.
No. 21-2638 13

disposition of the case will protect the defendant adequately 

from double jeopardy. See United States v. Berardi, 675 F.2d 

894, 899 (7th Cir. 1982) (“The dangers posed by a duplicitous 

indictment include ... the defendant may not be adequately 

notified of the charges against him, that he may be subjected 

to double jeopardy, that he may be prejudiced by evidentiary 

rulings at trial, and that he may be convicted by a less than 

unanimous verdict.”).

After the ruling of the district court, there can be no question about the adequacy of the notice afforded Mr. Rogers. Because the evidence at trial showed that there were two different Mossberg shotguns, the district judge perceived a risk of 

confusion and cured any error that may have come from it. 

The final jury instructions told the jury to determine whether 

“[t]he defendant knowingly possessed a firearm, specifically 

the firearm that is Exhibit 2.”16 Thus, the jury instruction narrowed the bases of conviction to the exact Mossberg shotgun 

the jury was to consider in deliberations. Cf. United States v. 

Haldorson, 941 F.3d 284, 297 (7th Cir. 2019) (rejecting a constructive amendment challenge where “[t]he jury instruction 

was tailored to the specifics of the indictment and did not permit the jury to convict [the defendant] based on non-indicted 

[firearms]”). Because the district judge unambiguously instructed the jury that it had to find Mr. Rogers possessed the 

purchased Mossberg shotgun (Exhibit 2), the introduction of 

the unpurchased Mossberg shotgun in the video surveillance 

footage “did not afford the jury a broader basis on which to 

convict [Mr. Rogers] than the indictment allowed.” 

United States v. Mitchell, 64 F.3d 1105, 1112 (7th Cir. 1995). The 

16 R.97-3 at 18. 
14 No. 21-2638 

record also makes clear that Mr. Rogers had adequate notice 

of the allegation against which he had to defend. Cf.

United States v. Ratliff–White, 493 F.3d 812, 823 (7th Cir. 2007) 

(finding a harmless variance where the defendant was not deprived of an adequate opportunity to prepare a defense and 

was not exposed to a double jeopardy risk); United States v. 

Kuna, 760 F.2d 813, 819 (7th Cir. 1985) (same). 

Nor do we believe that that Mr. Rogers faces a realistic 

possibility of double jeopardy. The courts of appeals have 

held that the unit of prosecution for a violation of 18 U.S.C. 

§ 922(g) is “each transaction or acquisition by which he attempts to arm himself unlawfully.” Buchmeier, 255 F.3d at 

422–23. Here the Government charged broadly that Mr. Rogers had possessed a single Mossberg gun. It made no attempt 

to maintain that the possession of the display case gun was an 

offense different from the constructive possession of the substituted item purchased by A.W. on his behalf. Indeed, on appeal, it admits that the two activities, examining the display 

model and arranging for its purchase by a strawperson, involved a single course of conduct. As we noted in Berardi, 

675 F.2d at 898, the “line between multiple offenses and multiple means to the commission of a single continuing offense 

is often a difficult one to draw. The decision is left, at least 

initially, to the discretion of the prosecution.” Here, the Government made clear at oral argument that, in its view, 

Mr. Rogers committed a single offense involving a Mossberg 

gun. Thus, the record firmly protects Mr. Rogers against further prosecution. 
No. 21-2638 15

B.

In preparation for Mr. Rogers’s sentencing hearing, the 

PSR noted that, under the Sentencing Guidelines,17 Mr. Rogers’s base offense level was 20 because the Sig Sauer rifle was 

purchased with a high-capacity magazine. Prior to the hearing, Mr. Rogers objected to the base offense level, stating that 

he did “not believe a high-capacity magazine [was] involved 

in his case.”18 In the supplemental addendum to the PSR, the 

probation officer responded to his objection and noted that 

the purchase of the Sig Sauer rifle “included a 30-round magazine, which was confirmed by the case agent.”19

On appeal, Mr. Rogers continues to assert that when he 

handled the rifle at the store, it did not have a high-capacity 

magazine in it or near it, and that there is no evidence that he 

constructively possessed the rifle when it did. As Mr. Rogers 

points out, there was no trial evidence demonstrating that 

A.W. purchased a high-capacity magazine at the store or that 

one was found in or near the rifle when it was located in her 

apartment. The only evidence of the existence of a high-capacity magazine came from the Government’s solitary statement 

17 “(a) Base Offense Level (Apply the Greatest):” “(4) 20, if— ... (B) the (i) 

offense involved a (I) semiautomatic firearm that is capable of accepting a 

large capacity magazine; or (II) firearm that is described in 26 U.S.C. 

§ 5845(a); and (ii) defendant (I) was a prohibited person at the time the 

defendant committed the instant offense; ... .” U.S.S.G. § 2K2.1(a)(4)(B).

18 R.106.

19 Id.
16 No. 21-2638 

at the sentencing hearing that “the agent confirmed that that

gun was sold with a 30-round magazine.”20 

In response, the Government asserts that “circumstantial 

evidence showed that [Mr.] Rogers had knowledge of a highcapacity magazine since he was with A.W. at the time the Sig 

Sauer 400 was purchased, and he both physically and jointly 

possessed the gun after the purchase.”21 Mr. Rogers now contends that “even if a large capacity magazine was present 

when [he] and A.W. left the Bloomington Rural King, strict 

liability should not apply to enhance [his] sentence where 

nothing in the record suggests he was aware that such a magazine was in or near the rifle, especially later at the apartment.”22

But this argument was conceded in the sentencing hearing 

itself. At the sentencing hearing, Mr. Rogers only objected to 

the higher base offense level on the ground that the high-capacity magazine was not present when he physically possessed the firearm in the store. In fact, Mr. Rogers’s attorney 

appeared to recognize that a high-capacity magazine was purchased with the rifle. He stated the following at the sentencing 

hearing:

So if I understand Mr. Rogers correctly, he believes that the jury’s verdict was based on what 

happened at the gun counter, which did not include any kind of a magazine whatsoever and 

that he should not be, have a base offense level 

20 R.125 at 8.

21 Appellee’s Br. 29. 

22 Appellant’s Br. 25.
No. 21-2638 17

that is jacked up by six points because someone 

else later came and purchased a gun that did 

have a magazine on it. I believe that, that is his 

argument, and I certainly agree with him.23

Notably, Mr. Rogers never disputed the magazine’s presence 

when the firearm was later purchased by A.W. Instead, he 

only objected to its existence near the firearm while he was 

physically holding it. Since Mr. Rogers did not object at sentencing that no high-capacity magazine was purchased at all, 

but instead only objected that there was not one near the firearm when he physically handled it, he has waived this argument. 

“Although we construe waiver principles liberally in favor of the defendant, we have time and again found waiver

in just this circumstance—where a defendant or his counsel 

either concurs with the facts found in a pre-sentence report, 

or expressly declines to make an objection to those facts at 

sentencing, or both.” United States v. Robinson, 964 F.3d 632, 

642 (7th Cir. 2020) (citation omitted). “In making this determination, we consider express statements of waiver, as well as 

evidence of acquiescence.” United States v. Mansfield, 21 F.4th 

946, 954 (7th Cir. 2021). “We have found waiver where either 

a defendant or his attorney expressly declined to press a right 

or to make an objection.” United States v. Cooper, 243 F.3d 411, 

416 (7th Cir. 2001). Finally, we have previously held that 

“where a defendant has access to the PSR, and knows of his 

right to object to it, objects to certain parts of the PSR, and then 

states on the record that he does not have any others, ‘[t]his 

seems to us the paragon of intentional relinquishment’ that 

23 R.125 at 7.
18 No. 21-2638 

warrants a finding of waiver.” Robinson, 964 F.3d at 641 (alteration in original) (quoting United States v. Brodie, 507 F.3d 527, 

531 (7th Cir. 2007)). 

Here, Mr. Rogers failed to object to the assertion that a 

high-capacity magazine was, in fact, purchased with the Sig 

Sauer rifle. Thus, he has effectively conceded that argument. 

By focusing on the lack of a high-capacity magazine being either in or near the firearm at the sales counter, he relinquished 

his right to argue that any high-capacity magazine was purchased at all. And the district court found there was sufficient 

evidence to support the government’s theory of joint possession of the Sig Sauer with A.W., who purchased the rifle along 

with the high-capacity magazine. 

But even if Mr. Rogers had not conceded this point, it 

would ultimately fail. Mr. Rogers presented no evidence at 

the sentencing hearing that contradicted the findings in the 

PSR. Mr. Rogers denied the existence of the high-capacity 

magazine when he handled the rifle at the sales counter, but 

did not deny that it was purchased with the rifle by A.W. Nor 

did he make an argument that the facts surrounding the purchase of the magazine along with the firearm were inaccurate. 

Thus, Mr. Rogers “failed to produce any evidence that would 

call into question the factual allegations contained in the PSR, 

which were based upon hearsay evidence that the court 

deemed more reliable than the defendant’s bare denial.” 

United States v. Isirov, 986 F.2d 183, 186 (7th Cir. 1993). “Generally, where a court relies on a PSR in sentencing, it is the 

defendant’s task to show the trial judge that the facts contained in the PSR are inaccurate.” United States v. Mustread, 

42 F.3d 1097, 1101–02 (7th Cir. 1994). Here, Mr. Rogers failed 

to argue or demonstrate that the facts underlying the higher 
No. 21-2638 19

base offense level applied in the PSR were inaccurate or incorrect. 

While one might reasonably expect more evidence in the 

record of the purchase of the high-capacity magazine (a receipt of sale from Rural King or the recovered magazine from 

A.W.’s apartment), even without it, it was within the district 

court’s discretion to find that it was more likely than not purchased along with the rifle.24 “If the district court’s account of 

the evidence is plausible in light of the record viewed in its 

entirety, the court of appeals may not reverse it even though 

convinced that had it been sitting as the trier of fact, it would 

have weighed the evidence differently.” Anderson v. City of 

Bessemer City, 470 U.S. 564, 573–74 (1985). “Where there are 

two permissible views of the evidence, the factfinder’s choice 

between them cannot be clearly erroneous.” Id. at 574. 

Mr. Rogers effectively waived this argument at the sentencing hearing. But even if he had not, after reviewing the 

evidence we are not left with a definite and firm conviction 

that a mistake was made on this issue. Thus, the district court 

did not err in applying the higher base offense level when calculating Mr. Rogers’s Guidelines range. 

24 “In applying the sentencing guidelines, the court ‘may consider relevant 

information without regard to its admissibility under the rules of evidence 

applicable at trial, provided that the information has sufficient indicia of 

reliability to support its probable accuracy.’” United States v. Grigsby, 692 

F.3d 778, 788 (7th Cir. 2012) (quoting U.S.S.G. § 6A1.3(a)). 
20 No. 21-2638 

CONCLUSION

No constructive amendment of Mr. Rogers’s indictment 

occurred. The district court properly identified the risk for duplicitous counts at trial but cured the problem with its final 

jury instructions. Additionally, the district court used the correct base offense level when calculating Mr. Rogers’s Guidelines range. Therefore, the judgment of the district court is affirmed. 

 

AFFIRMED