# 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 po wder 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 cour t 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 st ill imposing a below-guidelines sentence), we affirm the judgment. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 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 office rs 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 th at its serial number had been removed. In the same pocket, they also found a plas tic bag containing three baggies of cocaine weighing 4.8 grams total.

Sanchez was indicted on federal charges an d 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 previous ly been convicted of at least two crimes punishable by more than one year of impris onment, 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 gove rnment establishes that the defendant was trafficking drugs, the enhancement automati cally 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 pack ets 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 alternat ive, 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 beca use, 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 hi s possession of the drug. He emphasized that he did not have a larg e amount of cocaine (the weight of 4.8 grams included the packaging), a large sum of money, or any to ols 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 go vernment’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 Sa nchez intended to sell the cocaine becauseNo. 18-2907 Page 3

“it’s rare to see a case, if ever, where a pe rsonal 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 Sanc hez had two previous marijuana-trafficking convictions, making it likely that he was se lling 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 v ary downward from the Guidelines range because, among other reasons, the base offense level overstated the threat he posed and his criminal history category overstated hi s record. The court rejected those arguments, noting in particular that his criminal hist ory 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 th e 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 e rroneous only if a review of all the evidence

leaves us with a “definite and firm convicti on” 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 inaccu rate 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 erro neous 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 gi ving 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 mist ake. 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 inte nded 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, Sa nchez’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 e xplain the basis for its conclusion that 4.8 grams is a “wholesale amount,” and the gove rnment did not produce evidence or cite any authority about what quantity of po wder cocaine is a distribution amount. Additionally, Sanchez’s single previous t rafficking 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 interpre tation of the facts is not “implausible, illogical, internally inconsistent or cont radicted 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 ow n experience and knowledge to the facts

before it to conclude that Sanchez in tended 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 no t impact the final sentence. We have encouraged district judges, when resolving cl ose issues under the Guidelines, to explain on the record any alternate grounds fo r 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 di strict 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 co ncluded that procedural error was harmless

even when the district cour t 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 co urt improperly denied his request for a

downward variance because its conclusion th at his criminal-history category did not overstate the seriousness of his record rested on a clearly erroneous fact—that “hisNo. 18-2907 Page 5

criminal-history score did not reflect that he failed to comply with previously imposed terms of probation.” Sanchez points ou t that one conviction earned him two criminal-history points instead of one becaus e 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 Sa nchez’s category did not reflect his pattern of recidivating while on probation and did no t “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 co ncluded 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