In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 17-3084, 17-3127, 17-3396 & 17-3559

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDREW SHELTON, FREDERICK LEWIS, PATRICK EDWARDS &

TERRY WALKER

Defendants-Appellants.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division

Nos. 15-cr-00350-1, 15-cr-00350-9, 15-cr-00350-7 & 15-cr-00350-6 —

John J. Tharp, Jr., Judge.

____________________

ARGUED SEPTEMBER 21, 2018 — DECIDED OCTOBER 3, 2018

____________________

Before WOOD, Chief Judge, and FLAUM and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. Defendants Andrew Shelton, Frederick Lewis, Patrick Edwards, and Terry Walker raise several 

sentencing challenges. First, all defendants argue the district 

court improperly imposed multiple offense-level enhancements under U.S.S.G. § 2K2.1 in violation of double counting 
2 Nos. 17-3084, 17-3127, 17-3396, 17-3559

principles. Second, Shelton challenges the court’s application 

of three criminal history points for a prior burglary conviction. Third, Lewis argues the court erred by imposing a threeyear term of supervised release without separately addressing the § 3553(a) factors. We affirm. 

I. Background

A. Factual Overview

In the early morning on April 12, 2015, eight men—Andrew Shelton, Alexander Peebles, Elgin Lipscomb, Terry 

Walker, Patrick Edwards, Frederick Lewis, Dandre Moody, 

and Marcel Turner—stole about 104 Ruger firearms from a 

cargo train parked in a Chicago rail yard. The firearms were 

new and packaged in their original boxes. The eight burglars 

then divided the stolen firearms among themselves and sold 

them on the black market. Most of the guns have not been recovered, but at least seventeen of the stolen guns have been 

recovered from crime scenes. 

B. Indictment and Guilty Pleas

The operative indictment is the third superseding indictment, which the grand jury returned on October 15, 2015. Relevant to this appeal, the indictment charged defendants with: 

possession of a firearm after being convicted of a felony, in 

violation of 18 U.S.C. § 922(g) (Count One); possession of a 

stolen firearm, in violation of 18 U.S.C. § 922(j) (Count Two); 

and cargo theft, in violation of 18 U.S.C. § 659 (Count Three). 

Shelton pleaded guilty to Counts One and Two; Lewis 

pleaded guilty to Counts One and Three; Edwards pleaded 

guilty to Counts One and Two; and Walker pleaded guilty to 

Counts One and Three. 
Nos. 17-3084, 17-3127, 17-3396, 17-3559 3

C. Sentencing

1. Andrew Shelton 

The district court sentenced Andrew Shelton on October 

3, 2017. Relevant here, the pre-sentence report (“PSR”) suggested: a two-level Guidelines enhancement for stolen firearms pursuant to § 2K2.1(b)(4)(A) (the “stolen firearm enhancement”); a four-level enhancement for “engag[ing] in the 

trafficking of firearms” pursuant to § 2K2.1(b)(5) (the “trafficking enhancement”); and a four-level enhancement for 

“us[ing] or possess[ing] any firearm or ammunition in connection with another felony offense” pursuant to 

§ 2K2.1(b)(6)(B) (the “other felony offense enhancement”). 

Shelton objected to the application of the other felony offense 

enhancement, and the district court overruled the objection. It 

reasoned: 

Here, Mr. Shelton clearly possessed the firearms that he 

was taking from the train in connection with another offense, namely, that train robbery. Application note 

14(B) to the guideline, 2K2.1, is directly on point. It says 

that subsection (b)(6)(B), which is the subsection we’re 

talking about, applies in a case of a defendant who during the course of a burglary finds and takes a firearm 

even if the defendant did not engage in any other conduct with that firearm during the course of the burglary. 

Additionally, Shelton objected to the PSR’s recommendation of eleven criminal history points. Pursuant to U.S.S.G.

§ 4A1.2(a) and § 4A1.2(k), the PSR suggested adding three 

criminal history points for each of three 1999 burglary convic-
4 Nos. 17-3084, 17-3127, 17-3396, 17-3559

tions. According to the PSR, Shelton was first arrested for burglary on January 24, 1999; on July 28, 1999, he pleaded guilty 

and he was sentenced to three years of probation. On February 8, 1999, Shelton again was arrested for burglary; on March 

8, 1999, he pleaded guilty and was sentenced to twenty-nine 

days’ imprisonment followed by three years of probation. 

And on August 26, 1999, Shelton was arrested for burglary a 

third time; he pleaded guilty on May 23, 2000. By committing 

this third burglary, Shelton violated the terms of his probation. The court revoked his probation and, for each of the 

three burglary convictions, sentenced Shelton to “4 years of 

custody in the IDOC, concurrent with [the other two case 

numbers].” He was released from custody on February 21, 

2001, which is within fifteen years of the commencement of 

this case, April 12, 2015.

At sentencing, Shelton argued criminal history points 

were only appropriate for the May 2000 conviction. The court 

disagreed. Because there was no evidentiary presentation to 

the contrary, the court assumed the PSR’s description of Shelton’s prior convictions was accurate. It concluded that “what 

the state court did formally was to impose that four-year sentence of revocation on each of those three cases, two of them 

being probation violations and one of them being an original 

sentence.” Because the revocation term of imprisonment plus 

the original term of imprisonment was greater than thirteen 

months, and Shelton’s date of release from incarceration was 

within fifteen years of commencement of the present offense, 
Nos. 17-3084, 17-3127, 17-3396, 17-3559 5

the court imposed three criminal history points for Shelton’s 

March 1999 conviction. See U.S.S.G § 4A1.2(e), (k).1

In total, Shelton’s adjusted offense level was 29 and criminal history category was IV. The Guidelines suggested a term 

of imprisonment of 121–151 months. After the court examined 

the § 3553(a) factors, it commented that the disputed Guidelines factors and Shelton’s criminal history score were not material to its sentencing decision. The court then imposed a below-Guidelines imprisonment term of 120 months and three 

years of supervised release.

2. Frederick Lewis

The district court sentenced Frederick Lewis on October 5, 

2017. Amongst the enhancements to his base offense level, the 

PSR suggested the two-level stolen firearm enhancement; the 

four-level trafficking enhancement; and the four-level other 

felony offense enhancement. Lewis raised several objections; 

relevant here, Lewis argued the other felony offense enhancement was improper because it resulted in “double counting,” 

as he also received the trafficking and stolen firearm enhancements. The district court overruled Lewis’s objection. It explained: 

There’s no double counting involved because there has 

been an enhancement because the firearms were stolen. The enhancement for possession of the firearm in 

connection with another offense goes beyond the fact 

that the firearm was stolen. It’s possession of the firearm in connection with the commission by Mr. Lewis 

 1 The government conceded that the PSR’s suggestion of also imposing three criminal history points based on the July 1999 conviction was 

improper. See U.S.S.G. § 4A1.2 cmt. n.11.
6 Nos. 17-3084, 17-3127, 17-3396, 17-3559

of another offense, namely stealing firearms off the 

train car.... [T]he stolen firearm enhancement would 

apply whether or not Mr. Lewis had anything to do 

with the theft of the firearm in the first place. 

Lewis’s total adjusted offense level was 34 and criminal 

history category was VI. Due to a statutory cap, the Guidelines recommended 240 months’ imprisonment. They also 

suggested one-to-three years of supervised release. The court 

considered and discussed the § 3553(a) factors at length, and 

it imposed a below-Guidelines imprisonment term of 180 

months and a three-year term of supervised release. The court 

explained that supervised release was appropriate “[g]iven 

the seriousness of this offense and the long unabated history 

of criminal conduct by Mr. Lewis.” It also noted that the “term 

of supervised release is not intended to be additional punishment” but instead is “intended to be a resource.” It emphasized that the probation officer would “provide support and 

guidance and mentoring and resources.” At the end of the 

hearing, the government asked the court if it was “fair to say 

that the Court would impose that sentence regardless of how 

the enhancements were [applied].” The court replied that it 

“did intend to point that out,” and stated it would not have 

imposed a lower sentence if the Guidelines range was lower.

3. Patrick Edwards

Next, the district court sentenced Patrick Edwards on November 2, 2017. The PSR suggested applying the two-level 

stolen firearm enhancement; the four-level trafficking enhancement; and the four-level other felony offense enhancement. Edwards objected; he argued the court could not im-
Nos. 17-3084, 17-3127, 17-3396, 17-3559 7

pose the stolen firearm enhancement or the other felony offense enhancement due to double counting. The court overruled both objections. 

First, the court saw no double counting concern with applying the stolen firearm enhancement to a person convicted 

of being a felon in possession of a firearm. It explained:

[J]ust because someone is a felon in possession of a firearm, they’re not necessarily in possession of a stolen 

firearm.... [W]here the firearm possessed by that prohibited person also happens to be a stolen firearm, the 

commission has said that there needs to be a further 

two-level enhancement based on the additional seriousness of the fact that the firearm being possessed by 

the prohibited person is a stolen firearm.

Second, as for the other felony offense enhancement, the court 

rejected the argument that this burglary did not qualify because the guns were packaged and not readily accessible. 

Edwards’s total adjusted offense level was 29, and combined with a criminal history category of VI, the Guidelines 

suggested 151–188 months’ imprisonment. After weighing 

the § 3553(a) factors, the court imposed a below-Guidelines 

term of imprisonment of 132 months and three years of supervised release. The court then explained that disputed Guidelines issues were not material to the sentence. 

4. Terry Walker

Last, the district court sentenced Terry Walker on December 6, 2017. Like his codefendants, the PSR suggested the twolevel stolen firearm enhancement; the four-level trafficking 

enhancement; and the four-level other felony offense enhancement. Walker objected to the application of both the 
8 Nos. 17-3084, 17-3127, 17-3396, 17-3559

trafficking enhancement and other felony offense enhancement. At sentencing the court rejected his objection. It explained: 

Under Section 2K2.1(b)(6)(B), that enhancement applies to possession of a firearm in connection with another offense. And here Mr. Walker clearly possessed 

the firearms that were being stolen in connection with 

the train car burglary. His possession of the firearms 

was a crime. The burglary was a crime, and he possessed the firearms in connection with the burglary....

It’s not double counting. 

Walker’s total adjusted offense level was 34. With a criminal history category of IV, and taking into account the statutory maximum, the Guidelines suggested 210–240 months’ 

imprisonment. After weighing the § 3553(a) factors, the court 

imposed a below-Guidelines imprisonment term of 150 

months and three years of supervised release. After imposing 

the sentence, the court stressed it would have imposed the 

same sentence regardless of the Guidelines disputes.

II. Discussion

Generally, “[w]e review the district court’s interpretation 

of the Guidelines de novo, and review for clear error the factual 

determinations underlying the district court’s application of 

the Guidelines.” United States v. Grzegorczyk, 800 F.3d 402, 405 

(7th Cir. 2015). “We review de novo procedural errors,” such 

as improperly calculating the Guidelines range or failing to 

consider the § 3553(a) factors. Id. 

Additionally, “[e]rrors in calculating the advisory guideline range are subject to harmless error analysis.” United States 

v. Hill, 645 F.3d 900, 906 (7th Cir. 2011). “To prove harmless 
Nos. 17-3084, 17-3127, 17-3396, 17-3559 9

error, the government must be able to show that the Guidelines error did not affect the district court’s selection of the 

sentence imposed.” Id. at 912 (quoting United States v. Abbas, 

560 F.3d 660, 667 (7th Cir. 2009)). “[W]here the district court 

indicates that it would have imposed the same sentence regardless of any sentencing error, the error is harmless and a 

remand is not required.” United States v. Foster, 701 F.3d 1142, 

1157 (7th Cir. 2012). However, “a conclusory comment tossed 

in for good measure” will not suffice. Abbas, 560 F.3d at 667.

A. Double Counting

All four defendants challenge the district court’s application of offense-level enhancements pursuant to U.S.S.G. 

§ 2K2.1(b). At issue here are three subsections: The stolen firearm enhancement, § 2K2.1(b)(4)(A), calls for a two-level enhancement “[if] any firearm ... was stolen.” The trafficking 

enhancement, § 2K2.1(b)(5), calls for a four-level enhancement “[i]f the defendant engaged in the trafficking of firearms.” And the other felony offense enhancement, 

§ 2K2.1(b)(6)(B), calls for a four-level enhancement “[i]f the 

defendant ... used or possessed any firearm or ammunition 

in connection with another felony offense; or possessed or 

transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed 

in connection with another felony offense.” 

Defendants argue the district court erred in applying these 

enhancements because doing so resulted in impermissible 

“double counting,” a claim of procedural error we review de 
10 Nos. 17-3084, 17-3127, 17-3396, 17-3559

novo.2 “In the context of guidelines sentencing, the term ‘double counting’ refers to using the same conduct more than once 

to increase a defendant’s guidelines sentencing range.” United 

States v. Vizcarra, 668 F.3d 516, 519 (7th Cir. 2012). There are 

two types of double counting: (1) “conduct that forms the factual basis for an element of the offense might also support a 

guidelines enhancement or adjustment, meaning that the conduct is counted once as part of the base offense and a second 

time through the application of an enhancement or adjustment”; and (2) “particular conduct might support the application of more than one enhancement or adjustment.” Id.

In Vizcarra, we acknowledged inconsistency in our cases 

about double counting and clarified our jurisprudence. We issued a clear directive: “[D]ouble counting is generally permissible unless the text of the guidelines expressly prohibits it.” 

Id.3

 2 The government maintains that Shelton, Lewis, and Walker “all 

agreed in their sentencing memorandum, and failed to object at their sentencings, that the stolen firearm enhancement under Guidelines 

§ 2K2.1(b)(4)(A) applied,” and that Shelton did not object to the trafficking 

enhancement under § 2K2.1(b)(5). It thus contends that those defendants 

waived or forfeited review of those enhancements. We disagree. “In the 

context of sentencing objections in the district court, a defendant need not 

present a ‘fully developed or even well-articulated’ objection to preserve 

it for appeal.” United States v. Johns, 732 F.3d 736, 740 (7th Cir. 2013) (quoting Swanson v. United States, 692 F.3d 708, 715 (7th Cir. 2012)). Here, all 

defendants “objected to application of the other felony offense enhancement, which preserves the [double counting] issue.” See id. Indeed, Lewis 

and Walker explicitly raised their double counting concerns.

3 We recognized that other circuits “have developed slightly different 

‘tests’ for finding ‘impermissible’ double counting.” Vizcarra, 668 F.3d at 

525. Specifically, the “Third, Fourth, and Fifth Circuits allow double 

counting in the absence of an explicit textual bar”; “[t]he Second, Sixth, 
Nos. 17-3084, 17-3127, 17-3396, 17-3559 11

1. The Stolen Firearm Enhancement

First, only Edwards argues the district court improperly 

applied § 2K2.1(b)(4)(A) because Edwards pleaded guilty to 

possessing a stolen firearm under 18 U.S.C. § 922(j). He points 

out that “the fact that such firearms were stolen was an element of [§ 922(j)],” and therefore contends that the stolen firearm enhancement cannot apply because “the same facts, the 

same guns, and the same conduct are being used to unfairly 

twice penalize Mr. Edwards.” We disagree.

Edwards relies on United States v. Podhorn, 549 F.3d 552 

(7th Cir. 2008). In Podhorn, the defendant was convicted of violating several federal statutes, including selling stolen firearms in violation of 18 U.S.C. § 922(j). Id. at 555. On appeal, 

the defendant “claim[ed] that he should not have received an 

enhancement under [U.S.S.G.] § 2K2.1(b)(4) based on the fact 

that some firearms were stolen, because the offense with 

which he was charged, 18 U.S.C. § 922(j), already includes as 

an element the fact that the firearm is stolen.” Id. at 559. According to the defendant, “[a]pplying the enhancement ... 

would ... amount to double-counting.” Id. We agreed. Id. at 

559–60. We relied on Application Note 8(A) (at the time, Application Note 9), which states: 

 

and Eighth Circuits allow double counting if Congress or the Sentencing 

Commission intended it, but presume such intent in the absence of a textual bar”; “[t]he First Circuit allows double counting absent an explicit 

textual bar or a compelling basis to recognize an implicit one”; “[t]he 

Ninth, Tenth, and Eleventh Circuits allow double counting unless the 

competing guidelines provisions address identical harms caused by the 

defendant’s conduct”; and “[t]he D.C. Circuit ... appears to presume that 

double counting is permissible absent a textual bar.” Id. at 525–26 (footnotes omitted). 
12 Nos. 17-3084, 17-3127, 17-3396, 17-3559

If the only offense to which § 2K2.1 applies is 18 U.S.C. 

§ 922(i), (j), or (u), or 18 U.S.C. § 924(l) or (m) (offenses 

involving a stolen firearm or stolen ammunition) and 

the base offense level is determined under subsection 

(a)(7), do not apply the enhancement in subsection 

(b)(4)(A). This is because the base offense level takes 

into account that the firearm or ammunition was stolen. 

U.S.S.G. § 2K2.1 cmt. n.8(A).4 As we later stated in Vizcarra, 

our decision in Podhorn was “not controversial” because it “involved an explicit double-counting bar in the text of the 

guidelines.” 668 F.3d at 523. 

Contrary to Edwards’s view, Podhorn is inapplicable here.

Application Note 8(A) does not apply for two reasons. First, 

in this case, § 922(j) is not “the only offense to which § 2K2.1 

applies.” Rather, Edwards also pleaded guilty to possession 

of a firearm as a convicted felon under § 922(g). Second, the 

base offense level was determined under § 2K2.1(a)(6), and 

not subsection (a)(7). Thus, unlike in Podhorn, Application 

Note 8(A) does not expressly prohibit application of the stolen 

firearm enhancement, and there is no impermissible double 

counting concern.

2. The Other Felony Offense Enhancement

Next, all defendants argue the court improperly imposed 

the other felony offense enhancement because it also imposed 

the stolen firearm enhancement and the trafficking enhance-

 4 The quoted text is the present wording of Application Note 8(A). 

While not verbatim to the text we considered in Podhorn, it is substantially 

similar.
Nos. 17-3084, 17-3127, 17-3396, 17-3559 13

ment. Because the Guidelines do not expressly preclude adding these enhancements together in appropriate cases, and 

each enhancement addresses a different aspect of defendants’ 

conduct in this case, the district court did not err.

Defendants first suggest Application Note 13(D) to § 2K2.1 

expressly prohibits application of both the other felony offense and trafficking enhancements. Note 13(D) reads:

In a case in which three or more firearms were both 

possessed and trafficked, apply both subsections (b)(1) 

and (b)(5). If the defendant used or transferred one of 

such firearms in connection with another felony offense (i.e., an offense other than a firearms possession 

or trafficking offense) an enhancement under subsection (b)(6)(B) also would apply.

U.S.S.G. § 2K2.1 cmt. n.13(D). 

It is true that Note 13(D) “expressly prohibits” imposing 

enhancements under § 2K2.1(b)(6)(B) and § 2K2.1(b)(5) if the 

other felony offense is the trafficking offense itself. United 

States v. Johns, 732 F.3d 736, 740 (7th Cir. 2013). For that reason, 

in Johns, we held that the court erred because it applied both 

enhancements “based on the same conduct—[the defendant’s] transfer of the firearms to the CI with knowledge that 

the CI was going to resell the firearms.” Id. 

Critically, however, “the guidelines do not prohibit simultaneous application of the trafficking and other-felony [offense] enhancements” when the other felony offense is an offense other than firearms possession or trafficking. United 

States v. Rodriguez, 884 F.3d 679, 681 (7th Cir. 2018); see also

United States v. Grove, 725 F. App’x 252, 254 (4th Cir. 2018); 

United States v. Truitt, 696 F. App’x 391, 394 (11th Cir. 2017); 
14 Nos. 17-3084, 17-3127, 17-3396, 17-3559

United States v. Sweet, 776 F.3d 447, 451 (6th Cir. 2015). Here, 

defendants possessed firearms in relation to a felony offense 

“other than a firearms possession or trafficking offense”: burglary of the cargo train. Thus, unlike in Johns, only 

§ 2K2.1(b)(5) applied based on defendants’ sale of the firearms; § 2K2.1(b)(6)(B) was imposed due to the burglary.

Additionally, defendants maintain the court’s application 

of the other felony offense enhancement constituted impermissible double counting because the stolen firearms were already used to apply the stolen firearm enhancement. While 

they point to no Guidelines provision or commentary that 

suggests a court cannot impose both enhancements, they emphasize that in Vizcarra, we held that “double counting is generally permissible.” 668 F.3d at 519 (emphasis added). They 

thus maintain that double counting may be impermissible 

even when not expressly prohibited by the Guidelines. They 

suggest that other circuits—which, as we said in Vizcarra, “allow double counting unless the competing guidelines provisions address identical harms caused by the defendant’s conduct”—provide a roadmap for this supposed exception. See 

668 F.3d at 526 & n.8 (citing United States v. Gallegos, 613 F.3d 

1211, 1216 (9th Cir. 2010); United States v. Coldren, 359 F.3d 

1253, 1256 (10th Cir. 2004); United States v. De La Cruz Suarez,

601 F.3d 1202, 1220 (11th Cir. 2010)).5

Defendants’ argument is not persuasive. Our holding in 

Vizcarra was clear, well-reasoned, and based on the text and 

 5 Defendants argue the government waived the opportunity to respond to this argument because it did not address the out-of-circuit cases 

cited by Lewis in its response brief. We disagree. In its response brief, the 

government responded to this precise argument. It explained why it believed the various enhancements accounted for distinct harms.
Nos. 17-3084, 17-3127, 17-3396, 17-3559 15

structure of the Guidelines. Indeed, nothing in our subsequent case law suggests any sort of exception. See, e.g., Rodriguez, 884 F.3d at 680 (“[D]ouble counting is permitted unless 

the text of the guidelines or the authoritative commentary expressly prohibits it. Thus, to find that the court erred ..., we 

must conclude that the guidelines expressly prohibit it.” (emphasis added)).

Moreover, the “competing guidelines provisions” at issue 

here do not “address identical harms caused by the defendant’s conduct.” See Vizcarra, 668 F.3d at 526. To be sure, all 

three enhancements relate to the same stolen guns. However,

the court imposed the three enhancements to address distinct 

conduct and harm: the § 2K2.1(b)(4)(A) enhancement applied 

because defendants possessed firearms that happened to be 

stolen (regardless of whether defendants were involved in the 

theft of the firearms); the § 2K2.1(b)(5) enhancement applied 

because defendants trafficked firearms; and the 

§ 2K2.1(b)(6)(B) enhancement applied because the defendants 

committed another felony offense, the burglary. See United States 

v. Hill, 563 F.3d 572, 581 (7th Cir. 2009) (“[T]he [other felony 

offense] enhancement in this case was based on conduct that 

was distinct from [the defendant’s] simple possession of the 

firearms, namely the burglary.”).

Indeed, Guidelines commentary explicitly instructs that 

the other felony offense enhancement does apply when a defendant acquires a firearm during a burglary:

Subsection[] (b)(6)(B) ... appl[ies] ... in a case in which 

a defendant who, during the course of a burglary, finds 

and takes a firearm, even if the defendant did not engage in any other conduct with that firearm during the 

course of the burglary.... In [this] case[], application of 
16 Nos. 17-3084, 17-3127, 17-3396, 17-3559

subsection[] (b)(6)(B) ... is warranted because the presence of the firearm has the potential of facilitating another felony offense....

U.S.S.G. § 2K2.1 cmt. n.14(B). Defendants argue Note 14(B) 

does not apply to the particular burglary at issue here. They 

emphasize that defendants did not set out to steal firearms, 

that the stolen firearms were boxed up for distribution, and 

that the firearms were not readily accessible and available for 

use. Defendants thus contend that applying the other felony 

enhancement would not serve the underlying rationale of 

Note 14: the risk of stolen firearms facilitating another offense.

This argument is not persuasive. “Application Note 14(B) 

is unequivocal about when the § 2K2.1(b)(6) enhancement 

should apply: when a defendant, ‘during the course of a burglary, finds and takes a firearm, even if the defendant did not 

engage in any other conduct with that firearm.’” United States 

v. Krumwiede, 599 F.3d 785, 790 (7th Cir. 2010) (quoting 

U.S.S.G. § 2K2.1 cmt. n.14(B)); see also United States v. Johnston, 

533 F.3d 972, 976 (8th Cir. 2008) (“Stealing a firearm during 

the course of a burglary triggers application of the [other felony offense] enhancement.”). Put simply, as the district court 

concluded, “there’s nothing in the application note that suggests [defendants’ proffered] limitation.”

In sum, the stolen firearm, trafficking, and other felony offense enhancements were all appropriate, there was no impermissible double counting, and the court did not err. 

B. Shelton’s Criminal History Points

Next, Shelton challenges the court’s decision to include 

three criminal history points for a prior burglary conviction. 

“Under U.S.S.G. § 4A1.1(a), a criminal defendant is assigned 
Nos. 17-3084, 17-3127, 17-3396, 17-3559 17

three criminal history points for each prior sentence of imprisonment exceeding thirteen months.” United States v. MorenoPadilla, 602 F.3d 802, 807 (7th Cir. 2010). “The temporal reach 

of U.S.S.G. § 4A1.1(a) is limited to prior sentences imposed or 

served within fifteen years of the defendant’s commencement 

of the offense for which he or she is presently being sentenced.” Id. (citing U.S.S.G. § 4A1.2(e)(1)). 

Criminal history points might also be added if a defendant’s probation on a prior conviction “was revoked and ... he 

was re-imprisoned based on that revocation.” United States v.

Marks, 864 F.3d 575, 579 (7th Cir. 2017). In such a situation, the 

court “add[s] the original term of imprisonment to any term 

of imprisonment imposed upon revocation,” and “[f]or the 

purposes of determining the applicable time period,” the 

court uses “the date of last release from incarceration on such 

sentence.” U.S.S.G. § 4A1.2(k). If “at the time of revocation another sentence was imposed for a new criminal conviction, 

that conviction [is] computed separately from the sentence 

imposed for the revocation.” Id. § 4A1.2 cmt. n.11. At the same 

time, “[w]here a revocation applies to multiple sentences, and 

such sentences are counted separately under § 4A1.2(a)(2),” 

criminal history points are added only for “the term of imprisonment imposed upon revocation to the sentence that will result in the greatest increase in criminal history points.” Id.

A brief refresher of the relevant facts: Shelton was convicted of three state burglaries in 1999 and 2000. According to 

the PSR, he was sentenced to three years’ probation and 

twenty-nine days’ imprisonment for a March 8, 1999 conviction and three years’ probation for a July 28, 1999 conviction. 

When he was convicted for the third burglary on May 23, 

2000, he also violated the terms of his probation for the first 
18 Nos. 17-3084, 17-3127, 17-3396, 17-3559

two burglaries. For each of the three convictions, he was sentenced to “4 years of custody in the IDOC, concurrent with 

[the other case numbers].” Based on this information, the district court concluded that the state court imposed three separate custodial sentences. Pursuant to § 4A1.2(a), the court imposed three criminal history points for the May 2000 conviction, and pursuant to § 4A1.2(k), it imposed three criminal 

history points for the March 1999 conviction. 

Shelton argues the court erred because there is no evidence in the record suggesting the state court intended to impose separate terms of imprisonment for each prior burglary. 

Rather, he asserts that “the state court simply intended ... to 

indicate that the periods of probation previously imposed ... 

would be, as a practical matter, revoked and terminated since 

defendant would be serving a 4-year sentence for the [third]

burglary conviction.” 

The only mention of these prior burglaries in the record is 

made in the PSR. Shelton did not object to the PSR’s description of the prior burglaries, and because there was no “evidentiary presentation to suggest that what is reported ... in 

the [PSR] is inaccurate,” the court accepted the PSR’s characterization. If the PSR’s account is accurate, the court did not 

err. In United States v. Eubanks, a defendant was charged with 

armed robbery, and as a result, his probation for a prior firearm theft conviction was revoked. 593 F.3d 645, 654 (7th Cir. 

2010). We emphasized that the fact that “the sentence for the 

armed robbery offenses was to run ‘concurrent’ mean[s] that 

the sentence for the armed robbery offenses was a different 

offense from the revocation of probation/theft of the firearm 

sentence.” Id. at 654 n.1. We thus held that “[t]he district court 

correctly computed [the armed robbery] offense separate 
Nos. 17-3084, 17-3127, 17-3396, 17-3559 19

from the revocation offense for the purpose of criminal history points.” Id. at 654; see also United States v. Green, 458 F. 

App’x 568, 569 (7th Cir. 2012) (“[R]evocations are always 

counted separately from convictions in criminal history calculations.”); United States v. Brewster, 390 F. App’x 557, 560 

(7th Cir. 2010) (same).6

In any event, even if the district court’s reliance on the PSR 

was erroneous, any error in calculating Shelton’s criminal history score was harmless. The district court imposed a belowGuidelines term of imprisonment, and it made an “unequivocal statement ... that it would have imposed the same sentence” even if it improperly calculated criminal history points. 

See United States v. Hines-Flagg, 789 F.3d 751, 757 (7th Cir. 

2015). At the conclusion of Shelton’s sentencing hearing, the 

court stated clearly: “[W]hether there are some arbitrary 

points added or taken away from Mr. Shelton’s criminal history score does not change my overall analysis of the 3553(a) 

factors.”

C. Lewis’s Supervised Release

Last, Lewis argues the district court committed procedural 

error because it “did not make the § 3553(a) findings required 

 6 Shelton also argues the revocation sentence imposed related to the 

March 1999 conviction “remained beyond the 15-year time period” to be 

counted for criminal history points. This argument fails because for a term 

of imprisonment to be imposed due to revocation of probation, courts use

“the date of last release from incarceration on such sentence.” U.S.S.G. 

§ 4A1.2(k)(2)(A). Here, the date of release is within fifteen years of “defendant’s commencement of the instant offense.” See id. § 4A1.2(e)(1).
20 Nos. 17-3084, 17-3127, 17-3396, 17-3559

by § 3583(c) so as to properly justify the 3-year period of supervised release.”7 We disagree. It is true that “in determining 

the length of the term ... of supervised release,” the district 

court “shall consider” various § 3553(a) factors. 18 U.S.C. 

§ 3583(c). However, Lewis’s argument is misplaced because 

the district court did consider the § 3553(a) factors. 

“Although prison and supervised release are two different 

forms of punishment, they are both part of a single sentence.” 

United States v. Oliver, 873 F.3d 601, 610 (7th Cir. 2017); see also 

e.g., United States v. Bloch, 825 F.3d 862, 869 (7th Cir. 2016); 

United States v. Armour, 804 F.3d 859, 867–68 (7th Cir. 2015). 

For that reason, a district court is “not required to engage in a 

‘separate comprehensive analysis’ of the § 3553(a) factors as 

they applied to [the defendant’s] term of supervised release 

after extensively discussing those same factors with respect to 

 

7 The government suggests Lewis waived this argument because he 

did not challenge the Guidelines range for supervised release in his sentencing memorandum and did not object at the sentencing hearing. At 

minimum, the government maintains the error was forfeited so we should 

review for plain error. “Waiver is the intentional relinquishment of a 

known right,” while “forfeiture typically results from ‘an accidental or 

negligent omission.’” United States v. Garcia, 580 F.3d 528, 541 (7th Cir. 

2009) (quoting United States v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001)). 

“The line between waiver and forfeiture is often blurry,” and “[t]he distinction is not always easy to make.” Id. Indeed, our cases are inconsistent 

as to whether a defendant’s failure to object to the PSR’s Guidelines calculation constitutes waiver or forfeiture. Compare United States v. Oliver, 873 

F.3d 601, 610 (7th Cir. 2017) (“[W]hen [the defendant] stated that he had 

no objections to the PSR at the beginning of the sentencing hearing, he 

could not have known whether the district court would comply with procedural requirements during the rest of the proceeding.”), with United 

States v. Gumila, 879 F.3d 831, 837–38 (7th Cir. 2018) (finding waiver). We 

need not resolve this tension because the district court did not err. 
Nos. 17-3084, 17-3127, 17-3396, 17-3559 21

[the defendant’s] prison sentence.” Oliver, 873 F.3d at 611; see 

also Bloch, 825 F.3d at 869 (“[T]he district court was not required to provide two separate explanations, one for the term 

of imprisonment and one for the term of supervised release.”); Armour, 804 F.3d at 868 (“[T]he district court’s justifications for imposing [a prison term] also apply to the ... term 

of supervised release.”). Instead, the court “need only provide 

one overarching explanation and justification—tethered of 

course, to the § 3553(a) factors—for why it thinks a criminal 

sentence comprised of both terms of imprisonment and supervised release is appropriate.” Oliver, 873 F.3d at 611 (quoting Bloch, 825 F.3d at 870).

Here, the court examined the § 3553(a) factors in detail in 

justifying its sentence, which included terms of imprisonment 

and supervised release. Moreover, it explicitly indicated that 

supervised release was appropriate “[g]iven the seriousness 

of this offense and the long unabated history of criminal conduct by Mr. Lewis.” It also commented that the probation officer would “provide support and guidance and mentoring 

and resources.” Thus, the court did not err.8

 8 Lewis relies only on United States v. Henry, 813 F.3d 681 (7th Cir. 

2016). In Henry, we noted that “[t]he government [was] right to concede 

sentencing error in regard to supervised release” because the “district 

judge had failed to make the findings required by 18 U.S.C. §§ 3553(a) and 

3583(d) to justify the length of a term of supervised release ... that he imposed.” Id. at 683. Henry is distinct from this case for two reasons. First, 

the government conceded error. Second, the district court in Henry gave 

no explanation particular to why it imposed a term of supervised release.
22 Nos. 17-3084, 17-3127, 17-3396, 17-3559

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the 

district court.