United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 3, 2010∗

 Decided April 7, 2011

Before

FRANK H. EASTERBROOK, Chief Judge

RICHARD A. POSNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

Nos. 09-3727 & 09-3728

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JONATHAN GEAR,

Defendant-Appellant.

Appeals from the United 

States District Court for the 

Northern District of Illinois, 

Western Division.

Nos. 01 CR 50004 & 

06 CR 50067

Philip G. Reinhard, Judge.

Order

Jonathan Gear pleaded guilty to possessing a firearm despite a conviction that 

made this illegal. He was sentenced to 63 months’ imprisonment, consecutive to 21 

months’ imprisonment for violating the terms of his supervised release. On direct 

appeal we rejected all but one of Gear’s arguments. The successful argument was that 

the district judge should not have treated one of his earlier convictions as a “crime of 

violence” for the purpose of U.S.S.G. §2K2.1(a)(4). Our decision cut six levels off of the 

Guidelines calculation and reduced the recommended range from 57–71 months to 30–

37 months. Before remanding for resentencing, however, we observed: “the Guidelines 

are advisory. A judge is free to mete out a 63-month sentence to someone in Gear’s 

 

∗ These successive appeals have been submitted to the original panel under Operating Procedure 6(b). 

After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. 

R. App. P. 34(a); Cir. R. 34(f).

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NONPRECEDENTIAL DISPOSITION

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Fed. R. App. P. 32.1

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Nos. 09-3727 & 09-3728 Page 2

position if the judge concludes that Gear’s criminal history shows him to be dangerous, 

and in need of incapacitation, whether Gear’s base offense level is 14 or 20. [Citations 

omitted.] But the judge should start by knowing what sentence the Guidelines 

recommend.” United States v. Gear, 577 F.3d 810, 813 (7th Cir. 2009).

On remand, the district judge recalculated the sentencing range but concluded, 

as we had anticipated he might, that 63 months remains appropriate, and that 21 

additional months on revocation of supervised release also remains appropriate. Gear 

has appealed a second time, contending that the total sentence of 84 months is 

unreasonable. One of his arguments—that the judge should not have made the two 

terms consecutive—was considered and rejected in the prior appeal. The argument is 

no stronger the second time around. Actually it is weaker because of the law of the case. 

Gear also contends that both 63 months for the new offense and the total of 84 months 

for the new offense plus the fact that it was committed while on supervised release is 

unreasonably high. But this, too, is a rerun. We told the district judge both that 63 

months for the new crime, and running the sentences consecutively, would be 

reasonable, if the judge continued to think this appropriate after taking account of the 

Sentencing Commission’s (correctly understood) recommendation. We do not see any 

reason to reverse course.

Although Gear contends that the district judge did not adequately address his 

arguments for a lower sentence, we have reviewed the transcript and conclude that the 

judge adequately responded to the material issues. A judge need not slog through each 

argument, when the rationale can be gleaned from context. See Rita v. United States, 551 

U.S. 338, 356–60 (2007). We do not understand the judge to have foresworn all 

possibility of lenience based on rehabilitation after the initial sentencing. Instead the 

judge doubted that Gear, who is a repeat offender, was less of a risk to society today 

than he was at the time of the original sentencing. This appeal therefore is not affected 

by Pepper v. United States, 131 S. Ct. 1229 (2010), which concluded that, when 

resentencing a defendant after an appellate remand, the district judge is entitled to 

consider evidence of the defendant’s good conduct in prison. Pepper did not hold that a 

sentence reduction for self-improvement is essential or that the district judge must 

discuss this subject in every resentencing.

Gear contends that the district judge committed a procedural error by treating as 

two episodes of misconduct a single wrongful use of a firearm on May 13, 2005. The 

prosecutor agrees with Gear that he brandished a firearm only once that day but 

contends that the district judge’s statement was a slip of the tongue rather than a 

material error. Yet when explaining his sentence the judge referred separately to 

different parts of the presentence report as if they established two distinct events on 

May 13, and when wrapping up the judge stated: “Your conduct with a weapon and 

using it and threatening to use it on several occasions and possessing it while on 

supervised release, at least on three separate incidence ... after your release from the 

halfway house, all show that you are a dangerous person” (emphasis added). Yet the 
Nos. 09-3727 & 09-3728 Page 3

record documents only two post-release episodes.

Unfortunately, no one pointed out this error to the district judge, so he did not 

have an opportunity to reveal whether the difference between two and three postrelease episodes is material to his sentence. The United States contends that the 

standard of appellate review is plain error. But the presentence report was correct, and 

the error first appeared in the district judge’s explanation of his sentence, after the 

presentations of counsel had been completed. Lawyers need not take exception to 

judicial rulings already made. Fed. R. Crim. P. 51(a); United States v. Bartlett, 567 F.3d 

901, 910 (7th Cir. 2009). The harmless-error standard, not the plain-error standard, 

therefore governs this appeal. The United States does not contend that the error was 

harmless. We therefore vacate the sentence a second time and remand for another 

sentencing proceeding in which misapprehensions about Gear’s criminal history will 

not play a role.