In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2607

United States of America,

Plaintiff-Appellee,

v.

Willie T. Wallace,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:99CR131--James T. Moody, Judge.

Argued January 15, 2002--Decided February 11, 2002 

 

 Before Flaum, Chief Judge, and Coffey and

Easterbrook, Circuit Judges.

 Flaum, Chief Judge. Willie T. Wallace

pled guilty to one count of violating 18

U.S.C. sec. 922(g)(1) (felon in

possession of a firearm) without the

benefit of a plea agreement. Before

entering his plea, Wallace moved the

district court to suppress evidence. The

district court held a hearing and denied

the motion. After pleading guilty, but

before sentencing, Wallace moved to

dismiss the indictment in its entirety.

The district court denied this motion as

well. Wallace appeals, challenging these

rulings and several sentencing

enhancements. For the reasons stated

herein, we affirm.

I. Background

 A. The Predicate Felony

 On March 26, 1998, Wallace was convicted

in the Circuit Court of Cook County for

unlawful use of a weapon, which, at the

time, was a Class 4 felony in Illinois.

However, Wallace’s conviction was later

vacated as void ab initio when the

Supreme Court of Illinois ruled that the

Act that had transformed the unlawful use

of weapon ("UUW") charge from a

misdemeanor to a felony violated the

Illinois Constitution. See People v.
Cervantes, 723 N.E.2d 265 (Ill. 1999). As

a result, the Circuit Court of Cook

County entered a misdemeanor conviction

nunc pro tunc. 

 B. Wallace’s Subsequent Activity 

 The current appeal arises from two

events that occurred after the initial

felony, but before the Circuit Court

vacated the conviction in May 2000. On

April 10, 1999, Hammond Police Officer

Michael Serrano responded to a call

concerning an armed robbery. The robbery

victim described the suspect as wearing a

red sweatshirt and black pants and stated

that he recognized the suspect from a

particular neighborhood in East Hammond,

Indiana. Based upon this description,

Serrano identified Wallace, who was

wearing a red sweatshirt and black pants,

as Wallace stood with approximately six

other individuals on residential

property. Serrano approached the group

with his gun drawn (the victim had stated

the suspect was armed) and asked all of

the individuals to place their hands on

the hood of a car parked in the driveway.

Serrano patted down Wallace and arrested

him after discovering a .38 caliber

revolver.

 The second incident occurred on May 9,

1999. At approximately 2:35 a.m.,

officers were dispatched to a nightclub

in East Chicago to ensure the peaceful

dispersion of the club’s guests. While

there, Officer Nicholas Kokot observed

Wallace remove an assault rifle from the

trunk of a white Cadillac and place it in

the left rear passenger compartment of

the car. Officers stopped the vehicle and

arrested Wallace and two other occupants

for possession of an AK-47. After

determining that the weapon belonged to

Wallace, officers released the other

individuals.

 C. Proceedings

 On September 16, 1999, a federal grand

jury returned a two-count indictment

against Wallace. Both counts charged

Wallace with violations of 18 U.S.C. sec.

922(g)(1) (felon in possession of a

firearm). Wallace initially pled not

guilty, and the district court scheduled

a jury trial for November 15, 1999.

Subsequently, Wallace moved to postpone
his trial date on three separate

occasions (November 3, 1999; January 5,

2000; March 14, 2000). The magistrate

judge assigned to hear Wallace’s pretrial motions granted each continuance,

and the district court ultimately

scheduled a jury trial for March 22,

2000.

 On March 9, 2000, Wallace filed a motion

to suppress evidence stemming from both

incidents. The district court held a

suppression hearing on the day trial was

scheduled to begin. After hearing

witnesses, the district court credited

the officers’ testimony regarding each

event, holding that Officer Serrano had a

legitimate basis to pat down Wallace and

his companions and that Officer Kokot

observed the illegal activity on May 9.

Accordingly, the district court denied

Wallace’s motion to suppress. Trial was

set to begin soon thereafter.

 Immediately prior to the trial, and

after the district court had assembled

potential jurors, Wallace indicated that

he wanted to plead guilty to Count I of

the indictment. Citing a local rule, the

district court commented that all plea

agreements must be entered into at least

five days prior to the beginning of

trial. Wallace’s counsel responded that

two related events caused the failure to

comply with the local rule: (1) the

district court scheduled the trial earli

er than the parties had anticipated when

Wallace moved for a continuance before

the magistrate judge; and (2) an earlier

plea agreement proffered by the

government contained typographical errors

indicating Wallace was pleading guilty to

both Counts I and II. Upon further

questioning from the district court,

Wallace’s counsel conceded that the

government returned a corrected copy of

the plea agreement "the next day." The

district court ultimately accepted

Wallace’s guilty plea to Count I of the

indictment, while Count II was reserved

in abeyance until sentencing on Count I.

 After Wallace entered his guilty plea

without the benefit of an agreement with

the government, but before sentencing,

the Supreme Court of Illinois vacated

Wallace’s March 1998 felony conviction

that had served as the predicate for the

felon in possession charge. As a

consequence, Wallace filed a "motion to
dismiss for lack of subject matter

jurisdiction." The district court denied

this motion after hearing argument from

the parties, sentenced Wallace to 51

months imprisonment and entered an order

dismissing Count II of the indictment. In

reaching this sentence, the district

court considered the offense charged in

Count II as relevant conduct in

determining Wallace’s base offense level.

Based upon testimony from the suppression

hearing, the court found by a

preponderance of the evidence that

Wallace possessed the AK-47 on May 9.

Wallace continues to dispute the fact

that he ever possessed the assault rifle.

The court also refused to award a twopoint departure for acceptance of

responsibility. Wallace appeals.

II. Analysis

 Wallace first argues that the district

court "lacked subject matter

jurisdiction" once the Supreme Court of

Illinois vacated his felony conviction.

As the government appropriately notes,

Wallace’s argument is not really one of

subject matter jurisdiction, see United

States v. Martin, 147 F.3d 529, 531-33

(7th Cir. 1998), but rather a dispute

concerning whether the government proved

all of the elements necessary to sustain

a conviction under sec. 922(g)(1). That

question is easily answered because

Wallace necessarily admitted every

element comprising the offense charged

after he pled guilty. See United States

v. Broce, 488 U.S. 563, 569 (1989);

McCarthy v. United States, 394 U.S. 459,

466 (1969) ("a guilty plea is an

admission of all the elements of a formal

criminal charge."). The elements

comprising a sec. 922(g)(1) violation

are: (1) possession of a firearm; (2)

that had traveled in interstate commerce;

(3) by a felon. See United States v.

Quintanilla, 218 F.3d 674, 679 (7th Cir.

2000). By pleading guilty, Wallace

admitted that he had a prior felony

conviction, and he may not challenge that

admission before this court./1

 We may dispose of Wallace’s appeal of

the district court’s denial of his motion

to suppress for the same reason. Wallace

did not reserve the right to appeal any

ruling stemming from the suppression

hearing, either in writing or orally

before the district court. Furthermore,
Wallace’s guilty plea rendered irrelevant

the evidence obtained during the two

incidents because Wallace admitted he

possessed a firearm in violation of sec.

922(g)(1).

 That leaves Wallace’s appeal of the

district court’s sentencing

determinations. Here, Wallace raises two

arguments: (1) the district court

erroneously considered the charges in

Count II as relevant conduct during

sentencing; and (2) the district court

erred in refusing to depart downward

based upon acceptance of responsibility.

Both arguments are without merit.

 In calculating the base offense level,

the district court considered as relevant

conduct the charges in Count II of the

original indictment and found by a

preponderance of the evidence presented

at the suppression hearing that Wallace

possessed the assault rifle. The

Sentencing Guidelines define relevant

conduct with respect to offenses that

require grouping under sec. 3D1.2(d) as

"all acts and omissions . . . that were

part of the same course of conduct or

common scheme or plan as the offense of

conviction." Section 3D1.2 (d), in turn,

specifies certain crimes that require

grouping, including crimes governed by

sec. 2K2.1 (unlawful possession of a

firearm). Consequently, the Guidelines

required the district court to consider

relevant conduct in calculating Wallace’s

base offense level.

 There can be no question that the

district court acted properly when

considering the charges contained in

Count II of the original indictment as

relevant conduct under the Sentencing

Guidelines. In United States v. Santoro,

159 F.3d 318 (7th Cir. 1998), this court

cited with approval a First Circuit rule

that "the contemporaneous, or nearly con

temporaneous, possession of uncharged

firearms is . . . relevant conduct in the

context of a felon-in-possession prosecu

tion." Id. at 321 (citing United States

v. Powell, 50 F.3d 94, 104 (1st Cir.

1995)); see also United States v. Windle,

74 F.3d 997, 1000-01 (10th Cir. 1996)

(additional weapons violations should be

included as relevant conduct because

firearms possessed during a four to five

month period meet the "same course of

conduct" requirement in sec. 3D1.2).
Here, Wallace twice possessed firearms

approximately four weeks apart. This

conduct unequivocally falls within the

relevant conduct definition announced in

Santoro, and the district court properly

included it when calculating Wallace’s

base offense level.

 Wallace’s last contention--that the

district court erred in refusing to

depart downward for acceptance of

responsibility--must also fail.

Sentencing Guideline sec. 3E1.1 states

that the district court should decrease

the base offense level by two levels "if

the defendant clearly demonstrates

acceptance of responsibility for his

offense." Before the district court--and

again before this court--Wallace denied

that he ever possessed the assault rifle

described in Count II of the indictment.

While it is true that the district court

ultimately dismissed Count II, it strains

credulity to argue for an acceptance of

responsibility departure in this case.

Wallace’s guilty plea is the only factor

that he may cite in support of the

downward departure, and it is not

sufficient for at least three reasons.

First, we have often repeated that the

mere fact that a defendant pleads guilty

does not, standing alone, entitle him or

her to the departure. United States v.

Simmons, 218 F.3d 692, 696 (7th Cir.

2000) (citing United States v. Branch,

195 F.3d 928, 937 (7th Cir. 1999)).

Second, Wallace continues to deny

possessing the assault rifle charged in

Count II, even though the district court

considered that act relevant conduct in

determining his base offense level. By

definition, then, he is not entitled to

the departure. See U.S. Sentencing Guidelines

Manual sec. 3E1.1 n. 1(a) (listing

"truthfully admitting or not falsely

denying any additional relevant conduct"

as one important factor in awarding the

two-level departure for acceptance of

responsibility) (emphasis added); United

States v. Sierra, 188 F.3d 798, 804 (7th

Cir. 1999) ("A defendant does not accept

responsibility when he denies committing

criminal actions and relevant conduct

which the district court attributes to

him.") (emphasis added). Finally, Wallace

did not decide to plead guilty until

after the district court denied his

motion to suppress and assembled jurors

for trial. Such eleventh-hour tactics do

not warrant the acceptance of
responsibility departure. See United

States v. Ewing, 129 F.3d 430, 436 (7th

Cir. 1997).

III. Conclusion

 For the foregoing reasons, we AFFIRM

Wallace’s conviction and sentence.

FOOTNOTE

/1 Wallace’s argument lacks merit in any event. The

Supreme Court of the United States has held that

an offense may be predicated upon a prior state

court felony conviction, even though the predicate conviction is subject to collateral attack.

Lewis v. United States, 445 U.S. 55, 62 (1980).

The Court in Lewis upheld the defendant’s gun

possession conviction because the relevant statute contained no exception "for a person whose

outstanding felony conviction ultimately [turned]

out to be invalid for any reason." Id. at 62. We

have repeatedly reaffirmed this principle despite

different permutations of the change in status

regarding the predicate felony. See United States

v. Lloyd, 184 F.3d 695 (7th Cir. 1999) (conviction

discharged and dismissed following probation

pursuant to Illinois first-time offender plan);

United States v. Lee, 72 F.3d 55 (7th Cir. 1995)

(dealing with defendant’s status after conviction

was expunged ab initio). These cases reinforce

the straightforward principle that the only

relevant question is the defendant’s status at

the time he was charged with unlawfully possessing a firearm.