In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-2896 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

MATTHEW E. MOULTRIE, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Central District of Illinois. 

No. 4:18-cr-40055-SLD-1 — Sara Darrow, Chief Judge. 

____________________ 

ARGUED MAY 13, 2020 — DECIDED SEPTEMBER 16, 2020 

____________________ 

Before RIPPLE, BARRETT, and BRENNAN, Circuit Judges. 

RIPPLE, Circuit Judge. Matthew Moultrie was charged 

with, and pleaded guilty to, being a felon in possession of a 

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 

The probation office’s final presentence report calculated 

Mr. Moultrie’s offense level at 21; this calculation included 

enhancements for possessing a firearm with an obliterated 

serial number, for discharging his firearm in a manner that 

endangered others, and for obstructing justice by both flee-
2 No. 19-2896 

ing and engaging in a standoff with law enforcement. The 

presentence report also determined that Mr. Moultrie had a 

criminal history category of III. The resulting guidelines 

range was 46 to 57 months’ imprisonment. 

At sentencing, the district court employed Mr. Moultrie’s 

offense level and criminal history category as baselines. 

However, the court determined that, applying the factors set 

forth in 18 U.S.C. § 3553(a), Mr. Moultrie’s offense level did 

not account adequately for the dangerous situations that his 

actions had created, nor did it account for his post-arrest behavior, which included attempting to dissuade witnesses 

from testifying against him. According to the court, an offense level of 23, as opposed to 21, was more appropriate. 

Additionally, the court determined that Mr. Moultrie’s criminal history category did not account for the rapid escalation 

in his criminal activity or his risk of recidivism. The court 

believed a criminal history category of IV better captured the 

risk that he posed. These levels yielded a guidelines range of 

70 to 87 months, and the court imposed a sentence of 84 

months. 

On appeal, Mr. Moultrie challenges only the substantive 

reasonableness of his sentence. Concluding that the district 

court acted well within its discretion, we now affirm the 

judgment. 

I 

BACKGROUND 

A. 

From June 2017 until September 2018, Mr. Moultrie engaged in a series of increasingly serious criminal activities. 

He first was arrested for, and pleaded guilty to, possession 
No. 19-2896 3

of controlled substances (marijuana and Xanax); he was sentenced to 180 days in jail, 24 months’ probation, and community service. Mr. Moultrie was on probation for the possession offense when, in February 2018, he was arrested and 

charged in state court with armed violence, possession of a 

firearm, and possession with intent to deliver ten to thirty 

grams of cannabis. While out on bond for his state 

armed-violence charge, he committed the federal offense at 

issue here.1

 Specifically, on September 14, 2018, Mr. Moultrie 

was the passenger in a Ford Taurus driven by Shawn Housby. The Taurus passed another car driven by Julienne Conner and in which Nastassia Waters was a passenger; 

Mr. Moultrie knew both Conner and Waters. Mr. Moultrie 

fired five to six gunshots at Conner’s car. A stray bullet 

struck a different car, and several residents in the area called 

the police to report the shooting. 

Officer Miles of the Rock Island Police Department located a car matching the description of the Ford Taurus and attempted to stop it. The car, however, proceeded to Housby’s 

residence; as they approached the house, Housby slowed 

down, and Mr. Moultrie ran out of the car and into the 

house. Officers apprehended Housby and ordered the individuals inside the house to come out; none of them obeyed 

the commands. Police cars surrounded the residence, and, 

after a two-hour standoff, Mr. Moultrie and others exited the 

house. A subsequent search of the residence uncovered two 

handguns. The serial number of one of the guns had been 

1 The following facts are taken from Mr. Moultrie’s plea colloquy and 

the description of the offense in Mr. Moultrie’s second revised presentence report. See R.18, R.29. 
4 No. 19-2896 

obliterated, and Mr. Moultrie’s fingerprints were found on 

that gun. 

B.

Mr. Moultrie was charged in a one-count indictment with 

being a felon in possession of a firearm in violation of 18 

U.S.C. §§ 922(g)(1) and 924(a)(2). He pleaded guilty, and the 

probation department prepared an initial presentence report 

(“PSR”) filed on May 21, 2019.2

 The PSR calculated 

Mr. Moultrie’s offense level at 19; this offense level reflected 

an increase of 4 levels for possessing a firearm with an obliterated serial number under U.S.S.G. § 2K2.1(b)(4)(A) and an 

increase of 4 levels for Aggravated Discharge of a Firearm 

under U.S.S.G. § 2K2.1(b)(6) for shooting at an occupied car. 

A revised PSR was filed on June 18, 2019. It included the 

offense-related increases in the initial PSR and also included 

two upward adjustments for obstruction of justice. The first 

was an increase of 2 levels under U.S.S.G. § 3C1.2 (Reckless 

Endangerment During Flight) for 

recklessly creat[ing] a substantial risk of death 

or serious bodily injury to another person in 

the course of fleeing from a law enforcement 

officer when he ran from a car also occupied by 

Shawn Housby, while the officer was in pursuit and had his firearm drawn. Additionally, 

the defendant was ordered to come out of the 

house while numerous officers were outside 

2 See R.17. 
No. 19-2896 5

the residence, keeping officers at bay for 2 

hours ....3

The second was an increase of 2 levels under U.S.S.G. 

§ 3C1.1 (Obstructing or Impeding the Administration of Justice) because 

[t]he defendant willfully obstructed or impeded, or attempted to obstruct or impede, the 

administration of justice ... when he had several conversations on a recorded line at the 

Rock Island County Jail. During the conversation, the defendant discussed who he believed 

cooperated against him while his girlfriend, 

mother, an unknown male and his associate 

Preston McDowell all made attempts to intimidate or contact a witness in the case on his behalf ....4

Specifically, in one of the calls, Mr. Moultrie stated that he 

would kill Waters and Conner, the two women in the vehicle, if they testified against him. In another call, Mr. Moultrie 

discussed with his mother how one of the “girl[s]” had retracted her statement and told his mother to “try to get them 

to tell the other girl do the same thing.”5

 Mr. Moultrie’s 

3 R.19 ¶ 33. 

4 Id. ¶ 34. 

5 Id. ¶ 18. 
6 No. 19-2896 

mother responded that “I’ve got it handled, I don’t want to 

be saying s**t over the phone ....”6

 

The revised PSR also recounted that one of 

Mr. Moultrie’s associates, Preston McDowell, had approached Waters to ask her about the shooting, but Waters 

refused to talk to him. McDowell then stated that he was 

talking to her on Mr. Moultrie’s behalf. Specifically, 

McDowell asked her if she would recant her statement or “if 

he could ‘do something.’”7 Waters asked McDowell “what 

he meant by ‘something,’ but he would not respond.”8

McDowell then informed her that, when Mr. Moultrie shot 

at the car, he did not know he was shooting at her; McDowell explained that Moultrie had taken some Xanax and mistakenly believed the vehicle “was a cop car.”9

In addition to approaching Waters, McDowell posted on 

Facebook a picture of Mr. Moultrie that had been taken in 

the Rock Island County Jail where Mr. Moultrie was awaiting trial. In the photograph, Mr. Moultrie was flashing a 

gang sign, and McDowell had tagged Mr. Moultrie in the 

photo and added a hashtag “F***DaFeds.”10

6 Id.

7 Id. ¶ 16. 

8 Id. 

9 Id.

10 Id. ¶ 17. 
No. 19-2896 7

Mr. Moultrie filed objections to the revised PSR, specifically, to its mention of gang affiliation and the enhancements 

under U.S.S.G. § 3C1.1 and 3C1.2. The probation office then 

prepared a second revised PSR. The second revised PSR retained the information regarding Mr. Moultrie’s gang affiliation and the enhancement under § 3C1.2 for Reckless Endangerment During Flight based on Mr. Moultrie’s fleeing 

from police and causing the standoff on the night of September 14, 2018; the PSR eliminated, however, the enhancement for Obstructing or Impeding the Administration of Justice under § 3C1.1 for participating in efforts to contact and 

intimidate witnesses. It therefore calculated Mr. Moultrie’s 

offense level at 21. Combined with his criminal history category of III,11 the resulting advisory guideline range was 46 to 

57 months. 

At the sentencing hearing,12 the Government requested a 

sentence of “at least at the high end of the guideline range.”13

According to the Government, Mr. Moultrie’s “actions were 

11 Mr. Moultrie had four criminal history points: 1 for his juvenile theft 

conviction; 1 for his adult possession conviction (marijuana and Xanax); 

and 2 for committing the instant offense while on probation for the possession charge. 

12 Before any testimony or argument concerning Mr. Moultrie’s sentence, Mr. Moultrie’s counsel advised the court that Mr. Moultrie was 

waiving any challenge to his indictment based on Rehaif v. United States, 

139 S. Ct. 2191 (2019). See R.40 at 4. The court examined Mr. Moultrie 

both on his knowledge of his rights under Rehaif and on the voluntariness of his waiver. The court then “accept[ed] the post-plea waiver as it 

relates to the Rehaif challenge—or potential Rehaif challenge.” Id. at 7. 

13 Id. at 8. 
8 No. 19-2896 

a heartbeat away from murder.”14 Not only had he opened 

fire at an occupied car in a residential area, but he also had 

engaged in a violent standoff with police and had threatened 

to kill the women in the car if they testified against him. The 

Government also noted that Mr. Moultrie’s “use of firearms 

[wa]s escalating,” and the court “need[ed] to specifically deter him from doing the same thing again because we might 

not be so lucky next time.”15 The Government further submitted that a long sentence was necessary to promote general deterrence: “the Court’s sentence should take countenance of the fact that this defendant is emblematic of other 

young men in our community who are affiliated with gangs, 

who are not cognizant of the risk they pose to other people, 

who do not believe the rules apply to them, and need to be 

generally deterred.”16 

For his part, Mr. Moultrie’s counsel maintained that the 

guideline “range sufficiently account[ed] for some of the aggravating factors in this case.”17 Counsel explained that 

Mr. Moultrie’s criminal history was not “extensive,” that a 

five-year sentence was a “significant” sentence because it 

amounted to “a quarter of his life,” and that his in-jail com14 Id. at 10. 

15 Id. at 10–11. 

16 Id. at 15. 

17 Id. at 16. 
No. 19-2896 9

ments were just “a lot of bluffing among young men trying 

to act tougher than they really are.”18 

While acknowledging that the specific offense characteristics captured some of the aggravating aspects of 

Mr. Moultrie’s behavior, the district court concluded that the 

applicable guideline range did not “fully capture[]” the seriousness of Mr. Moultrie’s criminal activity.19 The court noted, for instance, that Mr. Moultrie was caught carrying a 

weapon while he was out on bond for the state 

armed-violence and possession-with-intent charges. Additionally, although Mr. Moultrie had received a two-level enhancement for his actions immediately following the shooting, the enhancement did not reflect the seriousness of 

Mr. Moultrie’s actions: 

Not only did you flee the vehicle that the 

police were apprehending at the time -- after 

you shot out of it with a firearm -- into the 

house, but then you were in an essentially 

two-hour standoff with the police. During this 

time, you put several people at risk -- the officers, the other individuals involved in this offense, and the other individuals in the house, 

some of whom, I think, were even sleeping or 

didn’t know what was happening. 

So, you created this extremely volatile and 

risky situation. ... And I know you don’t feel 

18 Id. at 18–19. 

19 Id. at 21. 
10 No. 19-2896 

lucky today, but you are lucky because you’re 

alive, the officers are alive, and everybody else 

involved in this -- including the people that 

you shot at -- are alive. So, it could have taken, 

in many different aspects, a wrong turn that 

would have really been irrevocable in terms of 

the tragedy.20

The court also noted that Mr. Moultrie’s post-arrest behavior showed a lack of respect for the law: he had posed for 

a photograph while making a gang sign; he had attempted 

to justify the shooting on the ground that it was a “cop car”; 

and he had articulated a willingness to kill a witness if she 

testified against him.21 

After recounting this “very disturbing conduct,” the 

court concluded that the two-level enhancement for obstruction did not “capture[] all of these aggravating, specific circumstances.”22 Framing its conclusions in terms of the 

Guidelines, the court believed that an adjusted offense level 

of 23, as opposed to 21, better captured the severity of 

Mr. Moultrie’s criminal behavior. 

The court also considered that Mr. Moultrie had been involved in a number of crimes in a short period of time. The 

court stated that it was concerned with 

20 Id. at 22–23. 

21 Id. at 24. 

22 Id. at 25–26. 
No. 19-2896 11

the fact that while on probation for [a juvenile] 

offense, you committed a new law violation. 

... 

... In fact, just months after being placed on 

that probation, you committed the offense -- 

the felony drug offense. Then while on probation for that offense, ... you were arrested and 

charged with another gun offense, and while 

on bond for that offense, you committed this 

offense just a short time period later. 

So, getting arrested on these other occasions 

didn’t make you afraid or nervous because you 

just kept committing crimes. You kept on doing things, including the instant offense conduct here. And then also getting a sentence in 

another case, a felony case as an adult and being placed on probation didn’t act as a deterrent for you, so now I have to look at that and 

see what do I -- what do I think your risk to recidivate is? 

And I think a Criminal History Category of 

III underestimates that risk to recidivate for 

those reasons because the other two types of 

intervention by the courts -- being placed on 

bond and then also being placed on terms of 

supervision -- were not specific -- or sufficient 

for you.23

23 Id. at 27–28. 
12 No. 19-2896 

The court also believed that “general deterrence” was a factor because of “the increase in shootings and gun crime and 

also with the decrease of respect for law enforcement and 

authorities which [we]re characteristics in [Mr. Moultrie’s] 

case.”24 Given these considerations, the court determined 

that a criminal history category of IV better represented 

Mr. Moultrie’s past criminal behavior. 

Using the adjustments to the offense level and criminal 

history category, the court arrived at a new Guidelines range 

of 70 to 87 months and imposed a sentence of 84 months’ 

imprisonment. 

II 

DISCUSSION 

As we already have noted, Mr. Moultrie challenges only 

the substantive reasonableness of his sentence, which we review for an abuse of discretion. See United States v. Fogle, 825 

F.3d 354, 358 (7th Cir. 2016). “As long as the sentencing 

judge gives an adequate justification, the judge may impose 

a sentence above the guidelines range if he believes the 

range is too lenient.” United States v. Hayden, 775 F.3d 847, 

849 (7th Cir. 2014) (citations omitted). Although a “major 

departure” from the Guidelines “should be supported by a 

more significant justification than a minor one,” United States 

v. Henshaw, 880 F.3d 392, 396 (7th Cir. 2018) (quoting Gall v. 

United States, 552 U.S. 38, 51 (2007)), “[t]here is no presumption that an above-guidelines sentence is unreasonable,” 

United States v. Lewis, 842 F.3d 467, 477 (7th Cir. 2016). “We 

24 Id. at 31. 
No. 19-2896 13

will uphold an above-guidelines sentence ‘so long as the district court offered an adequate statement of its reasons, consistent with 18 U.S.C. § 3553(a), for imposing such a sentence.’” Id. (quoting United States v. Gill, 824 F.3d 653, 665 

(7th Cir. 2016)) (citation omitted). 

Here, the district court’s sentence was grounded explicitly in the § 3553(a) factors.25 The court noted the seriousness 

of Mr. Moultrie’s conduct and how the Guidelines did not 

adequately account for the number of lives that he had put 

at risk. The court also observed that Mr. Moultrie had not 

been deterred by lesser measures. Finally, Mr. Moultrie’s 

criminal boldness and lack of respect for the law appeared to 

be on the rise; especially concerning to the court was his participation in efforts to convince witnesses to recant their 

statements. All of these factors, grounded in § 3553(a), warranted an above-guidelines sentence. 

Mr. Moultrie argues, however, that the district court’s 

sentence was unreasonable because the factors on which the 

district court rested its sentencing determination already had 

been accounted for in his sentence calculation. He notes that 

he received a four-level upward adjustment for aggravated 

25 Section 3553(a) of Title 18 lists, among others, the following relevant 

circumstances in determining a sentence: “the nature and circumstances 

of the offense”; “the history and characteristics of the defendant”; and 

the need for the sentence “to reflect the seriousness of the offense[,]” “to 

promote respect for the law[,]” “to provide just punishment for the offense[,]” “to afford adequate deterrence to criminal conduct[,]” “to protect the public from further crimes of the defendant[,]” and “to provide 

the defendant with needed educational or vocational training, medical 

care, or other correctional treatment in the most effective manner.”
14 No. 19-2896 

discharge of a firearm and a two-level enhancement for obstruction of justice based on his actions in trying to evade 

custody.26 

The district court, however, addressed explicitly why 

these enhancements did not account adequately for 

Mr. Moultrie’s actions. Not only did Mr. Moultrie discharge 

his weapon while fleeing in an automobile through a residential neighborhood, but he hid in Housby’s residence, 

putting occupants of the house in danger. He subsequently 

engaged in a multi-hour standoff with police, placing the officers in harm’s way as well. Moreover, the district court 

noted that Mr. Moultrie’s arrest did not mark the end of his 

troubling behavior. While incarcerated awaiting trial, 

Mr. Moultrie actively participated in plans to attempt to dissuade witnesses from testifying and voiced a willingness to 

kill those who testified against him. The district court’s sentencing determination, therefore, took into consideration a 

much broader swath of conduct than that covered by the 

four-level enhancement and two-level adjustment. The court 

concluded that, based on Mr. Moultrie’s collective actions, 

his offense level did not adequately reflect how dangerous 

his conduct was and how little respect he had for law en26 Mr. Moultrie does not argue explicitly that the district court’s sentence 

constituted impermissible double counting, nor would such an argument 

be availing. “[D]ouble counting occurs only when, in the context of determining the properly calculated guidelines range, the district court imposes two different increases based on identical facts or conduct.” United 

States v. Gamble, 395 F. App’x 290, 291 (7th Cir. 2010) (citing United States 

v. Diekemper, 604 F.3d 345, 354–55 (7th Cir. 2010)). Here, there is no question that, prior to considering the § 3553(a) factors, the court had properly calculated Mr. Moultrie’s sentence under the Guidelines. 
No. 19-2896 15

forcement and legal proceedings. We have upheld numerous 

above-guidelines sentences based on identical reasoning. 

See, e.g., United States v. Mejia, 859 F.3d 475, 479 (7th Cir. 

2017) (upholding an above-guidelines sentence based on the 

district court’s conclusion “that the Guidelines did not adequately address Mejia’s ‘incredibly troubling’ conduct”); 

United States v. Gill, 824 F.3d 653, 666 (7th Cir. 2016) (concluding that an above-guidelines sentence was not substantively unreasonable based on the district court’s explanation 

that the “guidelines range did not capture the full range of 

[the defendant’s] conduct and participation in violent acts”). 

Mr. Moultrie acknowledges that the district court’s sentencing determination was based, in part, on conduct that 

was not encompassed in his guideline calculation, specifically his conduct while incarcerated awaiting trial. He maintains, however, that the district court should not have considered that conduct in rendering sentence. He notes that, in 

the first revised PSR, the probation office had included an 

enhancement under § 3C1.1 for Obstructing or Impeding the 

Administration of Justice based on his post-arrest conduct, 

but that it was removed in the second revised PSR. According to Mr. Moultrie, the court’s consideration of this conduct 

was the equivalent of imposing an enhancement without 

putting the Government to its burden of proof. However, we 

have rejected previous attempts to limit the types of conduct 

that a court may consider at sentencing. See United States v. 

Lucas, 670 F.3d 784, 790 (7th Cir. 2012) (explaining that “[a] 

district court may consider a wide range of conduct at sentencing, including acquitted conduct and dismissed offens-
16 No. 19-2896 

es”).27 The district court’s consideration of Mr. Moultrie’s 

post-arrest conduct therefore did not render his sentence unreasonable.28 

Mr. Moultrie also maintains that the sentence was unreasonable because the district court overestimated the seriousness of his criminal history. Again he submits that his criminal history category adequately accounted for the concerns 

articulated by the court, namely that he committed the instant offense while on probation. Mr. Moultrie’s probationary status, however, was only one of several considerations 

that the district court relied upon in concluding that his 

criminal history category underrepresented both the seriousness of his criminal activity and the likelihood that he 

would recidivate. The court was concerned that 

27 It also is not critical for the district court to state on the record that it 

found the operative facts by a preponderance of the evidence. Cf. United 

States v. Holton, 873 F.3d 589, 591–92 (7th Cir. 2017) (“When a judge does 

not find explicitly that a defendant committed uncharged conduct by a 

preponderance of the evidence, the sentence will be upheld if ‘it is clear 

from the record’ that the judge determined that the defendant is responsible for it.”). It is clear from the sentencing transcript that the district 

court concluded that Mr. Moultrie had “coordinat[ed]” to have a witness 

recant her testimony and had expressed a willingness to kill witnesses 

who testified against him. R.40 at 24–25. 

28 Mr. Moultrie also maintains that the district court’s attempt to frame 

its ultimate sentencing determination in terms of a guidelines calculation 

was problematic. We cannot agree. Indeed, in United States v. Lucas, 670 

F.3d 784, 790 (7th Cir. 2012), the district court had reached a sentencing 

determination in a manner similar to the district court here, and we upheld the sentence, concluding that it was not the product of procedural 

error, nor was it substantively unreasonable. See id. at 790–92, 796–97. 
No. 19-2896 17

Mr. Moultrie’s repeated encounters with the law were not 

deterring Mr. Moultrie from engaging in criminal activity; 

indeed, despite these encounters, the number and severity of 

his crimes were increasing. Specifically, in February 2018, 

while on probation for a simple possession offense, 

Mr. Moultrie had been arrested and charged in state court 

with serious weapon and drug crimes. While out on bond, 

he had committed the instant offense involving the reckless 

use of a weapon. The court was concerned that Mr. Moultrie 

was on an increasingly serious criminal trajectory, that this 

activity had occurred over a very short period of time, and 

that his repeated interactions with the police and the criminal justice system did not seem to be deterring him in any 

way. The district court amply justified its decision to increase Mr. Moultrie’s criminal history category to account 

for these considerations. See United States v. Stinefast, 724 

F.3d 925, 933 (7th Cir. 2013) (citing “incorrigibility” among 

the relevant considerations for the district court in imposing 

an above-guidelines sentence); Lucas, 670 F.3d at 797 (7th 

Cir. 2012) (listing the fact that, “at the time of the offense, 

[the defendant] was on conditional release in Massachusetts 

for illegal possession of firearms” as part of the “compelling 

justification” that the court offered for the defendant’s 

above-guidelines sentence). 

Conclusion 

Mr. Moultrie’s sentence was not substantively unreasonable, and we therefore affirm. 

AFFIRMED