# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 13, 2012

Decided July 2, 2012

Before

RICHARD D. CUDAHY, Circuit Judge

DIANE P. WOOD

, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 12

‐ 1220

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

JAMES KEVIN TAYLOR,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Northern District of Indiana,

South Bend Division.

No. 3:11cr10

‐ 001

Jon E. DeGuilio,

Judge

.

O R D E R

James Taylor pleaded guilty to two counts of falsifying a Firearms Transaction

Record, 18 U.S.C. § 922(a)(6), and the district court sentenced him to a total of 70 months’

imprisonment, the bottom of his guidelines range. In calculating that range, the court found

that Taylor used a gun to commit another crime—felony battery by pistol

‐ whipping his

half

‐ brother—and applied a cross

‐ reference, U.S.S.G. § 2K2.1(c)(1)(A), to the offense

guideline for aggravated assault, id

. § 2A2.2. Taylor argues on appeal that because the

battery is not alleged in the § 922(a)(6) indictment, the court applied the cross

‐ reference in

violation of the Indictment Clause of the Fifth Amendment. But that clause does not require

the government to charge sentencing factors in the indictment. Accordingly, we affirm the

judgment of the district court. 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 12

‐ 1220 Page 2

Taylor was using heroin on a daily basis when he twice bought firearms from

Midwest Gun Exchange in Mishawaka, Indiana, in March 2009. Each time he represented

on a Firearms Transaction Record, ATF Form 4473, that he was not an unlawful user of

controlled substances, which enabled him to buy a semiautomatic pistol and a rifle. Later

that year Taylor was involved in a dispute with his half

‐ brother; according to the

presentence investigation report, Taylor hit his half

‐ brother in the head with a

gun—thought to be a semiautomatic pistol—and then held the gun to his head. As a result,

state prosecutors charged Taylor with unlawfully carrying a gun, I ND

. C ODE § 35

‐ 47

‐ 2

‐ 1, and

battery, id

. § 35

‐ 42

‐ 2

‐ 1, both misdemeanors. Federal investigators interviewed Taylor in

August 2010 (the reason is not disclosed in the record), and he admitted having used heroin

regularly for three years. Taylor also told the investigators that he had purchased ten guns

from Midwest Gun Exchange, which led the investigators to the false forms. Taylor was

charged in a two

‐ count indictment and pleaded guilty without the benefit of a plea

agreement.

A probation officer calculated Taylor’s total offense level at 12, which combined with

a criminal history category of III, yielded an imprisonment range of 15 to 21 months. The

probation officer considered applying a 4

‐ level increase to Taylor’s offense level under

U.S.S.G. § 2K2.1(b)(6)(B) for the use or possession of “any firearm or ammunition in

connection with another felony offense.” But the probation officer decided that this upward

adjustment did not apply because state prosecutors had charged Taylor only with

misdemeanors based on the incident with his half

‐ brother. The government objected and

pointed out that Application Note 14(C) to § 2K2.1 provides that the increase for using a

gun in connection with another felony offense applies “regardless of whether a criminal

charge was brought, or a conviction obtained.” Taylor opposed applying the adjustment on

multiple grounds, including that the application note violates the Fifth and Sixth

Amendments because, he contended, “the elements of ‘another felony’ [must be] charged

and proved beyond a reasonable doubt in a proceeding which affords defendant the full

spectrum of rights and safeguards.” After considering the parties’ competing views, the

district court reasoned that if subsection (b)(6)(B) applied, so too would the cross

‐ reference

found in § 2K2.1(c)(1)(A). That subsection provides that if a defendant used a firearm in

connection with another offense—even if not a felony—the court must apply § 2X1.1 with

respect to the other offense if doing so would result in a greater offense level. And § 2X1.1(a)

directs the sentencing court to apply the “base offense level from the guideline for the

substantive offense, plus any adjustments from such guideline for any intended offense

conduct that can be established with reasonable certainty.” See United States v. Samuels

, 521

F.3d 804, 808, 815 (7th Cir. 2008) (upholding use of § 2K2.1(c)(1)(A)’s cross

‐ reference to

apply offense guideline for aggravated assault to defendant convicted of aiding and

abetting possession of firearm by felon).No. 12

‐ 1220 Page 3

The district court then received evidence on the application of the cross

‐ reference.

After five witnesses testified, including Taylor and his half

‐ brother, the court issued its

tentative guidelines rulings, giving the parties an opportunity to object. The court

concluded that it was proper to apply the upward adjustment or to use the cross

‐ reference

to the aggravated

‐ assault guideline, U.S.S.G. § 2A2.2, and ordered the probation officer to

determine which approach would yield the higher offense level. The probation officer

calculated Taylor’s offense level under the aggravated

‐ assault guideline at 25, which was

higher than the level under the firearm guideline. The reason for the difference is that the

aggravated

‐ assault guideline includes a 4

‐ level increase for using a dangerous weapon,

see id

. § 2A2.2(b)(2)(B), and a 5

‐ level increase for causing serious bodily injury to another, see

id

. § 2A2.2(b)(3)(B). Taylor’s imprisonment range was now 70 to 87 months. The court

rejected Taylor’s objections to the revised calculations and sentenced him at the low end of

that range.

On appeal Taylor’s sole contention is that applying the cross

‐ reference in

§ 2K2.1(c)(1)(A)—and thus basing his guidelines range on the aggravated assault—violated

the Indictment Clause of the Fifth Amendment because the battery is not alleged in the

§ 922(a)(6) indictment. This argument, coming seven years after United States v. Booker

, 543

U.S. 220 (2005), is frivolous. Taylor relies on Apprendi v. New Jersey

, 530 U.S. 466, 490 (2000).

That decision holds that any fact, other than a prior conviction, which increases a statutory

maximum (and with it the defendant’s sentence) must be presented to a jury and proved

beyond a reasonable doubt. But Taylor was sentenced below the 10

‐ year statutory

maximum. See 18 U.S.C. § 924(a)(2). His sentence was affected by the application of the

sentencing guidelines, but Booker put to rest any contention that guidelines adjustments

must be alleged in an indictment or proved beyond a reasonable doubt. See, e.g.

, United

States v. Waltower

, 643 F.3d 572, 577 (7th Cir. 2011); United States v. Krieger

, 628 F.3d 857, 863

(7th Cir. 2010); United States v. Ashqar

, 582 F.3d 819, 824 (7th Cir. 2009). Even before

Apprendi

, the Supreme Court had made clear that an indictment must set forth each element

of the charged crime, but not factors relevant only to the sentencing. Almendarez

‐ Torres v.

United States

, 523 U.S. 224, 228 (1998); see Julian v. Bartley

, 495 F.3d 487, 496–97 (7th Cir.

2007). That rule was not altered by Apprendi or Booker ; the Indictment Clause does not

require that factors affecting the guidelines range be alleged in the indictment. United States

v. Abdulahi

, 523 F.3d 757, 760–61 (7th Cir. 2008) (concluding that Indictment Clause does not

require that drug quantity be alleged in indictment); United States v. Thomas

, 446 F.3d 1348,

1355 (11th Cir. 2006) (concluding that Indictment Clause does not require that facts used to

increase defendant’s guidelines range be found by grand jury and charged in indictment).

AFFIRMED

.