United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 25, 2011

Decided June 1, 2011

Before

RICHARD A. POSNER, Circuit Judge

JOHN L. COFFEY, Circuit Judge

JOEL M. FLAUM, Circuit Judge 

No. 10-2849

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMIE ROGERS,

Defendant-Appellant.

 

Appeal from the United States District

Court for the Northern District of Illinois,

Western Division.

No. 09 CR 50029

Philip G. Reinhard,

Judge.

O R D E R

A jury found Jamie Rogers guilty of possessing a firearm as a felon, 18 U.S.C.

§ 922(g), and the district court sentenced him to the statutory maximum of 120 months’

imprisonment, id. § 924(a)(2). Rogers appeals, but his appointed counsel has concluded that

the case is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744

(1967). Rogers has not accepted our invitation to comment on counsel’s motion. See CIR. R.

51(b). We confine our review to the potential issues identified in counsel’s facially adequate

brief. See United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir. 2009). 

Responding to a dispatch reporting possible drug dealing, two Rockford, Illinois,

police officers noticed Rogers walking away from the suspected crime scene. Although the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 10-2849 Page 2

dispatcher had not given a physical description of a suspect, it was late at night, the April

weather was cold and rainy, and Rogers was the only person they saw out in that highcrime neighborhood. The officers parked their car just ahead of Rogers, approached him on

foot, and asked if they could question him. Rogers paused, turned toward them, and put his

hands in his pants pockets. The officers instructed him to remove his hands, and when he

did, a plastic baggie containing what appeared to be drugs fell to the ground. (Later testing

confirmed that the baggie held marijuana and crack cocaine, but Rogers was never charged

with a drug crime). One of the officers tried to grab Rogers by the arm, but he pulled away

and ran. The two officers gave chase, and one of them saw Rogers throw a “dark black

object” that looked to be a gun. Rogers was caught and arrested, and his loaded handgun

was recovered just where he tossed it. And next to the gun was the hat that had fallen off

Rogers during the chase.

In his Anders submission counsel first considers whether Rogers could argue that the

district court erred in denying his motion to suppress the gun and the drugs. That motion

was premised on the theory that the officers illegally seized Rogers during their initial

contact with him, and thus tainted the discovery of the contraband. But the Fourth

Amendment is not implicated when police officers simply approach a person in public to

ask a few questions. United States v. Drayton, 536 U.S. 194, 200-01 (2002); United States v.

Tyler, 512 F.3d 405, 409 (7th Cir. 2008); United States v. Broomfield, 417 F.3d 654, 655-56 (7th

Cir. 2005). Not that it would matter here because as soon as he was told to take his hands

out of his pockets, Rogers dropped his drugs and fled, discarding the gun before he was

tackled by the pursuing officers. Thus, he abandoned any Fourth Amendment interest in the

contraband. See California v. Hodari D., 499 U.S. 621, 629 (1991); United States v. Taylor, 462

F.3d 1023, 1026 (8th Cir. 2006); United States v. Martin, 399 F.3d 750, 752 (6th Cir. 2005);

United States v. Basinski, 226 F.3d 829, 837 (7th Cir. 2000). So counsel is correct that a claim

about the suppression ruling would be frivolous. 

Next, counsel evaluates whether to claim that the district court erred by giving the

prosecutor leeway to impeach Rogers with his prior felony convictions for witness

tampering and violating an order of protection. In a pretrial motion in limine, Rogers

argued that, under Federal Rule of Evidence 609(a)(1), allowing the government to

introduce evidence of these convictions would be more prejudicial than probative. But

Rogers never testified at trial, so the jury never learned about these prior convictions. For

that reason the court’s ruling cannot be reviewed on appeal, United States v. Luce, 469 U.S.

38, 43 (1984), making any argument about it frivolous. 

Counsel also assesses the prospect of raising a claim that the prosecutor’s closing

argument deprived Rogers of a fair trial. To evaluate a claim of prosecutorial misconduct,

we would first determine whether the comments were improper, and, if so, whether they
No. 10-2849 Page 3

prejudiced Rogers by depriving him of due process. Darden v. Wainwright, 477 U.S. 168, 180-

81 (1986); United States v. Washington, 417 F.3d 780, 786 (7th Cir. 2005). Improper comments

during closing argument, however, “rarely rise to the level of reversible error.” United States

v. McMath, 559 F.3d 657, 667 (7th Cir. 2009) (quoting United States v. Wilson, 985 F.2d 348,

353 (7th Cir. 1993)).

Counsel identifies two remarks and evaluates whether they could have undermined

the integrity of the proceedings, but concludes that both were invited by defense counsel’s

attacks on the police investigation and neither was so prejudicial as to deny Rogers a fair

trial. During defense counsel’s closing argument, he repeatedly criticized the Rockford

police for conducting a sloppy and inadequate investigation, emphasizing their failure to

order DNA testing. In rebuttal, the prosecutor pointed out that Rogers also could have

introduced DNA analysis, commended the police officers’ professionalism, and praised

their work in apprehending Rogers. The government is allowed to defend its witnesses, see

United States v. Nunez, 532 F.3d 645, 654 (7th Cir. 2008); United States v. Johnson, 437 F.3d 665,

673-74 (7th Cir. 2006), and the prosecutor’s comments were fair responses to defense

counsel’s attacks, see United States v. Young, 470 U.S. 1, 11-13 (1985); United States v. Wimbley,

553 F.3d 455, 461 (6th Cir. 2009); United States v. Paul, 175 F.3d 906, 912 (11th Cir. 1999);

United States v. Palmer, 37 F.3d 1080, 1086 (5th Cir. 1994). Thus, it would be frivolous to

challenge the remarks.

 Next, counsel examines whether Rogers could argue that his conviction is not

supported by sufficient evidence. In assessing its sufficiency, we would view the evidence

in the light most favorable to the government and uphold the conviction unless no rational

jury could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 318-19 (1979); United States v. Morris, 349 F.3d 1009, 1013 (7th Cir. 2003). To

convict under § 922(g)(1), the government need only prove that the defendant was a felon

who possessed a firearm with a nexus to interstate or foreign commerce. 18 U.S.C.

§ 922(g)(1); United States v. Tate, 633 F.3d 624, 629 (8th Cir. 2011); United States v. Broadnax,

601 F.3d 336, 343 (5th Cir. 2010); Morris, 349 F.3d at 1013. Counsel questions only whether

Rogers possessed the recovered gun.

We agree with counsel that the evidence was more than sufficient for a rational jury

to find, beyond a reasonable doubt, that Rogers possessed the firearm. One of the officers

involved in the chase testified that, when Rogers was approximately 10 to 15 feet ahead of

him, he saw Rogers’s hat come off and then saw him drop a “dark black object,” which

made “a loud clinking noise” when it hit the ground, like a metal object would. The officer

stated that when he retraced Rogers’s route to the place he had seen the object discarded, he

found a black revolver on the ground near Rogers’s flyaway hat and that, despite the rain,

the gun was relatively dry. The resident who owned the property where the gun was found
No. 10-2849 Page 4

also testified that she did not see a gun there when she had walked her dog about an hour

before the police chase. These eyewitness accounts provided sufficient evidence to support a

finding of guilt. See United States v. Rodriguez, 457 F.3d 109, 119 (1st Cir. 2006); United States

v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005). Although the government did not link the gun

to Rogers with forensic evidence like a fingerprint or DNA match, the jury was entitled to

credit the testimony of these two witnesses, and we would not second-guess the jury’s

finding of guilt. See United States v. Hampton, 585 F.3d 1033, 1041-42 (7th Cir. 2009).

Finally, counsel considers whether Rogers could challenge the reasonableness of his

sentence. First, counsel questions whether the district court clearly erred by applying a 2-

level increase to Rogers’s offense level for reckless endangerment during flight. See U.S.S.G.

§ 3C1.2; United States v. Thomas, 294 F.3d 899, 906 (7th Cir. 2002). The adjustment is

warranted where “the defendant recklessly created a substantial risk of death or serious

bodily injury to another person in the course of fleeing from a law enforcement officer.”

U.S.S.G. § 3C1.2. Although the defendant must do more than just flee, reckless

endangerment is “to be construed broadly,” § 3C1.2, cmt. n.4, and simply leaving a loaded

weapon in a public place can warrant the adjustment, United States v. Lard, 327 F.3d 551, 553

(7th Cir. 2003); United States v. Brown, 314 F.3d 1216, 1221 (10th Cir. 2003). Rogers did just

that—he discarded a loaded revolver in a residential neighborhood at night, creating a

substantial risk that someone would find it and get hurt. Thus, it would be frivolous to

challenge the § 3C1.2 adjustment.

Second, counsel considers whether Rogers could argue that the district court abused

its discretion in sentencing him to the statutory maximum of 120 months, which is 15

months above the high end of his guidelines range. We would not presume an above-range

sentence to be unreasonable, see United States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008), and

we would be more likely to find this sentence reasonable if the district court based its

decision on factors “sufficiently particularized to the individual circumstances of the case,”

United States v. Wachowiak, 496 F.3d 744, 750 (7th Cir. 2007). Here, the district court correctly

calculated a total offense level of 22 and concluded that Rogers’s lengthy criminal history

put him in the highest criminal history category of VI. The resulting imprisonment range of

84 to 105 months, the court decided, did not adequately address Rogers’s extensive criminal

history. Rogers, at 34 years old, already had six convictions for felonies—most involving

violence or weapons—including second-degree murder, aggravated battery, gun

possession, and violating an order of protection. He also had a long list of convictions for

misdemeanors, including 11 for driving on a suspended or revoked license, 7 for attempting

to obstruct justice or resisting or fleeing an officer, and 1 for domestic battery. In addition,

Rogers had committed many of his crimes while on parole or conditional discharge. The

district court recognized a pattern of “utter disregard for the laws” that repeatedly

endangered the lives of others, and after finding that Rogers lacked any “rehabilitative
No. 10-2849 Page 5

potential,” the court concluded that a longer sentence was necessary to deter his criminal

conduct. This thorough and particularized explanation based on the factors in 18 U.S.C.

§ 3553(a), makes it pointless to challenge the length of Rogers’s sentence. 

We therefore GRANT the motion to withdraw and DISMISS Rogers’s appeal.