United States v. Shelton, No. 17-3084 (7th Cir. 2018)

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Justia Opinion Summary

Eight men stole 104 new Ruger firearms, in original packaging, from a cargo train parked in a Chicago rail yard. The men divided the stolen firearms among themselves and sold them on the black market. Most of the guns have not been recovered, but at least 17 have been recovered from crime scenes. The men were charged with possession of a firearm after being convicted of a felony, 18 U.S.C. 922(g); possession of a stolen firearm, 18 U.S.C. 922(j); and cargo theft, 18 U.S.C. 659. Shelton pleaded guilty to Counts One and Two. Lewis pleaded guilty to Counts One and Three. Edwards pleaded guilty to Counts One and Two. Walker pleaded guilty to Counts One and Three. All four challenged their sentences, arguing that the court improperly imposed multiple offense-level enhancements under U.S.S.G. 2K2.1 (stolen firearm, trafficking, and other felony offense enhancements) in violation of double counting principles. Shelton challenged the application of three criminal history points for a prior burglary conviction. The Seventh Circuit rejected the arguments and affirmed their below-Guidelines terms of 132 months, 180 months, 120 months, and 150 months, each with three years of supervised release. Any error in calculating Shelton’s criminal history score was harmless, given the below-Guidelines sentence.

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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 o ense-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 a rm. 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 rearms from a cargo train parked in a Chicago rail yard. The rearms were new and packaged in their original boxes. The eight burglars then divided the stolen rearms 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 rearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g) (Count One); possession of a stolen rearm, 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 rearms pursuant to § 2K2.1(b)(4)(A) (the “stolen rearm enhancement”); a four-level enhancement for “engag[ing] in the tra cking of rearms” pursuant to § 2K2.1(b)(5) (the “traf cking enhancement”); and a four-level enhancement for “us[ing] or possess[ing] any rearm or ammunition in connection with another felony o ense” pursuant to § 2K2.1(b)(6)(B) (the “other felony o ense enhancement”). Shelton objected to the application of the other felony o ense enhancement, and the district court overruled the objection. It reasoned: Here, Mr. Shelton clearly possessed the rearms 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 nds and takes a rearm even if the defendant did not engage in any other conduct with that rearm 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 rst 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 fteen 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 o ense 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 o ense level, the PSR suggested the two-level stolen rearm enhancement; the four-level tra cking enhancement; and the four-level other felony o ense enhancement. Lewis raised several objections; relevant here, Lewis argued the other felony o ense enhancement was improper because it resulted in “double counting,” as he also received the tra cking and stolen rearm enhancements. The district court overruled Lewis’s objection. It explained: There’s no double counting involved because there has been an enhancement because the rearms were stolen. The enhancement for possession of the rearm in connection with another o ense goes beyond the fact that the rearm was stolen. It’s possession of the rearm 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 o ense, namely stealing rearms o the train car…. [T]he stolen rearm enhancement would apply whether or not Mr. Lewis had anything to do with the theft of the rearm in the rst place. Lewis’s total adjusted o ense 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 o ense 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 o cer 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 rearm enhancement; the four-level tra cking enhancement; and the four-level other felony o ense enhancement. Edwards objected; he argued the court could not im- Nos. 17-3084, 17-3127, 17-3396, 17-3559 7 pose the stolen rearm 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 rearm enhancement to a person convicted of being a felon in possession of a rearm. It explained: [J]ust because someone is a felon in possession of a rearm, they’re not necessarily in possession of a stolen rearm.... [W]here the rearm possessed by that prohibited person also happens to be a stolen rearm, the commission has said that there needs to be a further two-level enhancement based on the additional seriousness of the fact that the rearm being possessed by the prohibited person is a stolen rearm. Second, as for the other felony o ense 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 o ense 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 rearm enhancement; the four-level tra cking enhancement; and the four-level other felony o ense enhancement. Walker objected to the application of both the 8 Nos. 17-3084, 17-3127, 17-3396, 17-3559 tra cking enhancement and other felony o ense enhancement. At sentencing the court rejected his objection. It explained: Under Section 2K2.1(b)(6)(B), that enhancement applies to possession of a rearm in connection with another o ense. And here Mr. Walker clearly possessed the rearms that were being stolen in connection with the train car burglary. His possession of the rearms was a crime. The burglary was a crime, and he possessed the rearms in connection with the burglary.… It’s not double counting. Walker’s total adjusted o ense 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 a ect 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 su ce. Abbas, 560 F.3d at 667. A. Double Counting All four defendants challenge the district court’s application of o ense-level enhancements pursuant to U.S.S.G. § 2K2.1(b). At issue here are three subsections: The stolen rearm enhancement, § 2K2.1(b)(4)(A), calls for a two-level enhancement “[if] any rearm … was stolen.” The tra cking enhancement, § 2K2.1(b)(5), calls for a four-level enhancement “[i]f the defendant engaged in the tra cking of rearms.” And the other felony o ense enhancement, § 2K2.1(b)(6)(B), calls for a four-level enhancement “[i]f the defendant … used or possessed any rearm or ammunition in connection with another felony o ense; or possessed or transferred any rearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony o ense.” 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 o ense might also support a guidelines enhancement or adjustment, meaning that the conduct is counted once as part of the base o ense 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 clari ed 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 rearm enhancement under Guidelines § 2K2.1(b)(4)(A) applied,” and that Shelton did not object to the tra cking 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 o ense 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 di erent ‘tests’ for nding ‘impermissible’ double counting.” Vizcarra, 668 F.3d at 525. Speci cally, 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 rearm under 18 U.S.C. § 922(j). He points out that “the fact that such rearms were stolen was an element of [§ 922(j)],” and therefore contends that the stolen rearm 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 rearms 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 rearms were stolen, because the o ense with which he was charged, 18 U.S.C. § 922(j), already includes as an element the fact that the rearm 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 o ense to which § 2K2.1 applies is 18 U.S.C. § 922(i), (j), or (u), or 18 U.S.C. § 924(l) or (m) (o enses involving a stolen rearm or stolen ammunition) and the base o ense level is determined under subsection (a)(7), do not apply the enhancement in subsection (b)(4)(A). This is because the base o ense level takes into account that the rearm 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 o ense to which § 2K2.1 applies.” Rather, Edwards also pleaded guilty to possession of a rearm as a convicted felon under § 922(g). Second, the base o ense 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 rearm enhancement, and there is no impermissible double counting concern. 2. The Other Felony O ense Enhancement Next, all defendants argue the court improperly imposed the other felony o ense enhancement because it also imposed the stolen rearm enhancement and the tra cking 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 di erent aspect of defendants’ conduct in this case, the district court did not err. Defendants rst suggest Application Note 13(D) to § 2K2.1 expressly prohibits application of both the other felony offense and tra cking enhancements. Note 13(D) reads: In a case in which three or more rearms were both possessed and tra cked, apply both subsections (b)(1) and (b)(5). If the defendant used or transferred one of such rearms in connection with another felony offense (i.e., an o ense other than a rearms possession or tra cking o ense) 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 o ense is the tra cking o ense 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 rearms to the CI with knowledge that the CI was going to resell the rearms.” Id. Critically, however, “the guidelines do not prohibit simultaneous application of the tra cking and other-felony [offense] enhancements” when the other felony o ense is an offense other than rearms possession or tra cking. 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 rearms in relation to a felony o ense “other than a rearms possession or tra cking o ense”: burglary of the cargo train. Thus, unlike in Johns, only § 2K2.1(b)(5) applied based on defendants’ sale of the rearms; § 2K2.1(b)(6)(B) was imposed due to the burglary. Additionally, defendants maintain the court’s application of the other felony o ense enhancement constituted impermissible double counting because the stolen rearms were already used to apply the stolen rearm 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 nd 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 rearms that happened to be stolen (regardless of whether defendants were involved in the theft of the rearms); the § 2K2.1(b)(5) enhancement applied because defendants tra cked rearms; and the § 2K2.1(b)(6)(B) enhancement applied because the defendants committed another felony o ense, the burglary. See United States v. Hill, 563 F.3d 572, 581 (7th Cir. 2009) (“[T]he [other felony o ense] enhancement in this case was based on conduct that was distinct from [the defendant’s] simple possession of the rearms, namely the burglary.”). Indeed, Guidelines commentary explicitly instructs that the other felony o ense enhancement does apply when a defendant acquires a rearm during a burglary: Subsection[] (b)(6)(B) … appl[ies] … in a case in which a defendant who, during the course of a burglary, nds and takes a rearm, even if the defendant did not engage in any other conduct with that rearm 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 rearm has the potential of facilitating another felony o ense…. 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 rearms, that the stolen rearms were boxed up for distribution, and that the rearms 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 rearms facilitating another o ense. 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, nds and takes a rearm, even if the defendant did not engage in any other conduct with that rearm.’” 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 rearm during the course of a burglary triggers application of the [other felony o ense] enhancement.”). Put simply, as the district court concluded, “there’s nothing in the application note that suggests [defendants’ pro ered] limitation.” In sum, the stolen rearm, tra cking, 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 fteen years of the defendant’s commencement of the o ense 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 rst 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 rearm theft conviction was revoked. 593 F.3d 645, 654 (7th Cir. 2010). We emphasized that the fact that “the sentence for the armed robbery o enses was to run ‘concurrent’ mean[s] that the sentence for the armed robbery o enses was a di erent o ense from the revocation of probation/theft of the rearm sentence.” Id. at 654 n.1. We thus held that “[t]he district court correctly computed [the armed robbery] o ense separate Nos. 17-3084, 17-3127, 17-3396, 17-3559 19 from the revocation o ense 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) ndings 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 fteen years of “defendant’s commencement of the instant o ense.” 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 di erent 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) ( nding 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 justi cations for imposing [a prison term] also apply to the … term of supervised release.”). Instead, the court “need only provide one overarching explanation and justi cation—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 o ense and the long unabated history of criminal conduct by Mr. Lewis.” It also commented that the probation of cer 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 ndings 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.

Primary Holding

Seventh Circuit affirms below-Guidelines sentences for defendants who pleaded guilty to stealing new firearms from a parked cargo train and selling them on the black market.

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