United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Argued April 24, 2019 

Decided May 15, 2019 

Before 

MICHAEL S. KANNE, Circuit Judge 

DAVID F. HAMILTON, Circuit Judge 

AMY J. ST. EVE, Circuit Judge

No. 18-2907 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

BRANDON L. SANCHEZ, 

 Defendant-Appellant.

 Appeal from the United States District 

Court for the Central District of Illinois. 

No. 4:17-cr-40069-001 

Sara Darrow, 

Chief Judge.

O R D E R 

While police officers were assisting an intoxicated Brandon Sanchez, they 

discovered a handgun and three baggies of powder cocaine in his pocket. Sanchez pled 

guilty to unlawful possession of a firearm by a person previously convicted of a felony, 

18 U.S.C. § 922(g), and possessing a firearm with an obliterated serial number, 

id. § 922(k). At sentencing, the district court found that Sanchez possessed the handgun 

in connection with drug trafficking. See U.S.S.G. § 2K2.1(b)(6)(B). It also denied 

Sanchez’s request for a downward variance. Because the district court did not clearly 

err in finding that Sanchez intended to sell drugs and properly rejected Sanchez’s 

reason for requesting a variance (while still imposing a below-guidelines sentence), we 

affirm the judgment. 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 18-2907 Page 2 

Sanchez, a daily cocaine user, says that on the day of his arrest he had decided to 

take his own life. He took a gun from his closet and ingested multiple controlled 

substances. Galesburg, Illinois police officers responded to a call about an intoxicated 

person on the street and encountered Sanchez, attempting (and failing) to stay upright, 

with the handle of the gun protruding from his pocket. The officers handcuffed Sanchez 

and discovered that the gun was loaded and that its serial number had been removed. 

In the same pocket, they also found a plastic bag containing three baggies of cocaine 

weighing 4.8 grams total. 

Sanchez was indicted on federal charges and pled guilty, without the benefit of a 

plea agreement, to unlawful possession of a firearm and possession of a firearm with an 

obliterated serial number. Sanchez had previously been convicted of at least two crimes 

punishable by more than one year of imprisonment, including delivery of marijuana in 

2011. 

At sentencing, the government sought a four-level enhancement for possessing a 

firearm “in connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), namely, 

drug trafficking or possession. Once the government establishes that the defendant was 

trafficking drugs, the enhancement automatically applies if law enforcement officials 

found the firearm in close proximity to the drugs. Id. § 2K2.1 cmt. n.14(B). The 

government argued that Sanchez’s three packets of cocaine totaling 4.8 grams in weight 

proved that he intended to traffic drugs, so the gun’s proximity (in the same pocket) 

triggered the enhancement. In the alternative, the government argued that Sanchez 

possessed the gun “in connection with” his possession of the cocaine. See U.S.S.G. 

§ 2K2.1(b)(6)(B). 

Sanchez objected to the enhancement because, he said, the government did not 

prove by a preponderance of the evidence that he intended to sell the cocaine or that his 

possession of the gun was connected with his possession of the drug. He emphasized 

that he did not have a large amount of cocaine (the weight of 4.8 grams included the 

packaging), a large sum of money, or any tools of the trade. And he argued that the 

evidence that the cocaine was divided into three baggies was insufficient to prove 

trafficking. 

The district court agreed with the government’s first justification for the 

enhancement: that Sanchez intended to sell the drugs and therefore the gun’s proximity 

to the drugs triggered the enhancement. It did not decide whether the gun facilitated 

his possession. The court determined that Sanchez intended to sell the cocaine because 
No. 18-2907 Page 3 

“it’s rare to see a case, if ever, where a personal user specifically of cocaine and 

especially a heavy user would have a wholesale amount of drugs as opposed to just one 

retail use.” The court then noted that Sanchez had two previous marijuana-trafficking 

convictions, making it likely that he was selling drugs again. (The court later corrected 

itself—Sanchez had only one trafficking conviction.) 

The court calculated a Guidelines range of 100–125 months’ imprisonment. 

Sanchez then requested that the court vary downward from the Guidelines range 

because, among other reasons, the base offense level overstated the threat he posed and 

his criminal history category overstated his record. The court rejected those arguments, 

noting in particular that his criminal history did not reflect his numerous failures at 

probation. The court sentenced Sanchez to 96 months in prison for unlawful possession 

and 60 months for the obliterated serial number, to be served concurrently. 

On appeal, Sanchez challenges both the district court’s application of the 

enhancement under § 2K2.1(b)(6)(B) and its denial of his request for a downward 

variance. We review a district court’s findings of fact for clear error and its application 

of the Guidelines to those facts de novo. United States v. Sandidge, 784 F.3d 1055, 1061 

(7th Cir. 2015). Findings of fact are clearly erroneous only if a review of all the evidence 

leaves us with a “definite and firm conviction” that the district court made a mistake. 

United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007). 

Sanchez contends that the decision to apply the § 2K2.1(b)(6)(B) enhancement is 

tainted by the district court’s inaccurate statement that he had two prior 

drug-trafficking offenses. Defendants have a due-process right to be sentenced based on 

accurate information, United States v. Oliver, 873 F.3d 601, 608 (7th Cir. 2017), and a 

sentencing court that relies on clearly erroneous facts commits “a significant procedural 

error,” Gall v. United States, 552 U.S. 38, 51 (2007). But a defendant must show that the 

court relied on the inaccurate information by giving it explicit attention or by founding 

the sentence at least in part on it. United States v. Salinas, 365 F.3d 582, 586 (7th Cir. 

2004). Here, the district court initially gave Sanchez’s “two” convictions “explicit 

attention,” but it later corrected its mistake. The court therefore did not rely on 

inaccurate information. See Lechner v. Frank, 341 F.3d 635, 640 (7th Cir. 2003). 

More substantially, Sanchez argues that the government did not prove by a 

preponderance of the evidence that he intended to traffic the cocaine in his pocket. 

See Sandidge, 784 F.3d at 1062. The district court reached its decision based on the gross 

weight of the drugs and their packaging, Sanchez’s previous drug-trafficking offense, 
No. 18-2907 Page 4 

and his possession of a loaded gun in the same pocket. It also focused on its belief that a 

heavy personal user of cocaine would rarely carry what it referred to as “a wholesale 

amount of drugs.” True, the court did not explain the basis for its conclusion that 4.8 

grams is a “wholesale amount,” and the government did not produce evidence or cite 

any authority about what quantity of powder cocaine is a distribution amount. 

Additionally, Sanchez’s single previous trafficking offense involved marijuana, not 

cocaine, and had occurred six years earlier; and he had no other trafficking 

accoutrements, such as cash, scales, or cutting agents. 

Nevertheless, the district court’s interpretation of the facts is not “implausible, 

illogical, internally inconsistent or contradicted by documentary or other extrinsic 

evidence.” Furry v. United States, 712 F.3d 988, 992 (7th Cir. 2013) (quoting EEOC v. Sears 

Roebuck & Co., 839 F.2d 302, 309 (7th Cir. 1988)). The court based its decision on 

evidence, and it presumably applied its own experience and knowledge to the facts 

before it to conclude that Sanchez intended to sell the drugs in his pocket. See Edmond v. 

United States, 899 F.3d 446, 455 (7th Cir. 2018). Thus, the court did not clearly err in 

choosing one permissible view of the evidence over the other. See United States v. 

Markovitch, 442 F.3d 1029, 1031 (7th Cir. 2006). 

In any event, the court’s finding did not impact the final sentence. We have 

encouraged district judges, when resolving close issues under the Guidelines, to explain 

on the record any alternate grounds for the sentence under 18 U.S.C. § 3553(a). United 

States v. Sanner, 565 F.3d 400, 406 (7th Cir. 2009). We will affirm a sentence despite 

significant procedural error if the district court provides “firm assurance” that the error 

did not affect the sentence. United States v. Zahursky, 580 F.3d 515, 528 (7th Cir. 2009). 

Here, before announcing the sentence, the district court said that, regardless of the 

enhancement, it believed that “a sentence at that range” would still be appropriate 

because “there is a danger when people are possessing a distribution amount of drugs” 

while on the streets with a gun. We have concluded that procedural error was harmless 

even when the district court made its “even if” statement before pronouncing the 

sentence. United States v. Rabiu, 721 F.3d 467, 471 (7th Cir. 2013). And the four-month 

variation from the bottom of the Guidelines range shows that the district court believed 

that an eight-year sentence was proper based on Sanchez’s overall behavior and history, 

regardless of the Guidelines range. 

Finally, Sanchez argues that the district court improperly denied his request for a 

downward variance because its conclusion that his criminal-history category did not 

overstate the seriousness of his record rested on a clearly erroneous fact—that “his 
No. 18-2907 Page 5 

criminal-history score did not reflect that he failed to comply with previously imposed 

terms of probation.” Sanchez points out that one conviction earned him two 

criminal-history points instead of one because he violated the terms of probation. But 

nothing the district court said is inconsistent with that fact. As the government argues, 

the district court stressed that Sanchez’s category did not reflect his pattern of 

recidivating while on probation and did not “adequately capture” his non-compliance 

with court orders during his several probation sentences. 

Because the district court did not rely on an inaccuracy, we review the denial of a 

variance for abuse of discretion. United States v. Pietkiewicz, 712 F.3d 1057, 1060 (7th Cir. 

2013). Sanchez insists that his criminal-history category overstates the seriousness of his 

record, but the district court reasonably concluded otherwise. It tied his string of 

failures to complete supervision successfully and his inability to conform with the law 

to his likelihood to recidivate (again). And, in explaining the sentence, the district court 

addressed the factors under 18 U.S.C. § 3553(a), including the seriousness of his crime, 

the need for specific deterrence, and the need to protect the public. It therefore did not 

abuse its discretion. United States v. Curtis, 645 F.3d 937, 943 (7th Cir. 2011). 

AFFIRMED