United States v. Galvan, No. 21-2771 (7th Cir. 2022)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Seventh Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Seventh Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Galvan, a citizen of Honduras, borrowed a van from his employer, Gomez. He drove to Gomez’s home to return the vehicle and shared a meal with Gomez's family. For unknown reasons, Galvan eventually pulled out a handgun, fired several shots, took the keys from Gomez, and drove away in the van. Gomez called the police. Less than two hours later, police received a report of a man with a gun at an apartment complex. Galvan had threatened men in the complex while brandishing a handgun. Police found Galvan leaning on Gomez’s van, arrested Galvan, and found a handgun in the driver’s seat. Galvan pled guilty to possessing that handgun as an alien unlawfully in the U.S., 18 U.S.C. 922(g)(5). A state court charge for armed robbery of Gomez’s van was dismissed.
The district court found that the sentencing guideline for robbery governed Galvan’s firearm-possession offense because he had used the same handgun when he robbed Gomez, U.S.S.G. 2B3.1(a) & 2K2.1(c)(1)(A) and that Galvan fired the handgun in connection with the robbery, increasing his offense level by seven. Galvan’s sentencing range was 63-78 months in prison. The district court sentenced Galvan to 70 months. The Seventh Circuit affirmed. Ample evidence supported the court’s finding that the same gun was involved in both episodes. A preponderance of the evidence established that Galvan discharged a firearm “during” the robbery under Indiana law.
Download PDF
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 21-2771 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NAIN GALVAN, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:18-cr-00031-TWP-RAB-1 — Tanya Walton Pratt, Chief Judge. ____________________ ARGUED MAY 18, 2022 — DECIDED AUGUST 16, 2022 ____________________ Before HAMILTON, BRENNAN and KIRSCH, Circuit Judges. HAMILTON, Circuit Judge. Appellant Nain Galvan, a citizen of Honduras, was arrested in possession of a handgun after robbing his employer and threatening several people at an apartment complex. He was later charged with and pled guilty to illegally possessing a rearm. At sentencing, the district court applied the guideline provisions for robbery because it found that Galvan used the same handgun in committing a robbery about two hours earlier. Galvan appeals, 2 No. 21-2771 arguing that the district court erred in factual ndings essential to its application of the Sentencing Guidelines. We a rm. I. Factual and Procedural Background Galvan worked part-time for Asencio Gomez in construction near Indianapolis. When necessary, Gomez would occasionally let Galvan and others borrow one of his work vans to assist with a project. On October 21, 2017, Galvan borrowed a van from Gomez because Galvan’s own vehicle had broken down. The next day, he drove to Gomez’s home to return the vehicle. Galvan gave the keys to Gomez and shared a meal with Gomez and his family. For unknown reasons, Galvan eventually pulled out a handgun, red several shots, took the keys from Gomez’s pocket, and drove away in the van. Gomez immediately called the police and reported a robbery. Less than two hours later, police received a report of a man with a gun at an apartment complex. Galvan had threatened several men in the complex while brandishing a handgun. When police arrived, they found Galvan leaning on the driver’s side of Gomez’s stolen van. Police arrested Galvan, and one of the o cers found a handgun in the driver’s seat. Galvan was later charged with and pled guilty to possessing that handgun as an alien unlawfully in the United States, in violation of 18 U.S.C. § 922(g)(5). At a combined plea and sentencing hearing, the district court rst accepted Galvan’s guilty plea but then decided that a second hearing was needed to consider evidence relevant to Galvan’s sentence. At that time, Galvan faced a pending charge in state court for armed robbery of Gomez’s van, but that charge was later dismissed. At the second sentencing No. 21-2771 3 hearing, the district court heard testimony from both Gomez and the detective who investigated the robbery. The district court then made several ndings about how to apply the Sentencing Guidelines to Galvan’s case. The court found that the guideline for robbery governed Galvan’s rearm-possession o ense because he had used the same handgun when he robbed Gomez. See U.S.S.G. §§ 2B3.1(a) & 2K2.1(c)(1)(A). The court also found that Galvan had red the handgun in connection with the robbery, which increased his o ense level by seven. These and other guideline ndings raised Galvan’s total o ense level from 14 to 26. With Criminal History I, Galvan’s guideline sentencing range was 63 to 78 months in prison. The district court sentenced Galvan to 70 months in prison and two years of supervised release. Galvan did not le a timely appeal, but he later led a motion under 28 U.S.C. § 2255 asserting in part that his counsel was ine ective for failing to le a notice of appeal when asked. The district court granted the motion, reissued the judgment, and entered his notice of appeal. II. Analysis The parties debate whether Galvan waived, forfeited, or properly preserved for appeal the issues he raises. “Waiver occurs when a party intentionally relinquishes a known right; forfeiture, in contrast, occurs as a result of a negligent failure timely to assert a right.” United States v. Hyatt, 28 F.4th 776, 781 (7th Cir. 2022). If a defendant has “sound strategic reasons” to forgo an argument in the district court, that points toward waiver. Id., quoting United States v. Dridi, 952 F.3d 893, 898 (7th Cir. 2020). We do not consider waived arguments, but we may assess forfeited arguments for plain error. Id.; see also Fed. R. Crim. P. 52(b) (“A plain error that a ects substantial 4 No. 21-2771 rights may be considered even though it was not brought to the court’s attention.”). We do not nd waiver here, and the outcome of this appeal does not turn on the di erence between standards of review for preserved and forfeited issues. A. Determining Galvan’s Base O ense Level First, Galvan argues that the district court erred in setting the base o ense level for his sentence because there was insu cient evidence that he used the same rearm in his federal possession o ense and the robbery of Gomez. Galvan was convicted of violating 18 U.S.C. § 922(g)(5), which would ordinarily call for a base o ense level of 14. U.S.S.G. § 2K2.1(a)(6). However, the district court applied § 2K2.1(c)(1)(A): (c)(1) If the defendant used or possessed any rearm … cited in the o ense of conviction in connection with the commission … of another o ense[,] … apply— (A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other o ense, if the resulting o ense level is greater than that determined above …. The guideline for attempt, solicitation, or conspiracy provides that the base o ense level should be the “base o ense level from the guideline for the substantive o ense, plus any adjustments from such guideline for any intended o ense conduct that can be established with reasonable certainty.” § 2X1.1(a). Here, applying the cross-reference in § 2K2.1(c)(1)(A), the district court found that the higher o ense level of 20 for robbery governed rather than the base o ense level of 14 for No. 21-2771 5 possessing a handgun as an alien unlawfully in the United States because Galvan used the rearm from his possession conviction “in connection with” his robbery of Gomez. See §§ 2B3.1(a), 2K2.1(a)(6), & 2K2.1(c)(1)(A). The court also considered speci c o ense characteristics for Galvan’s rearms o ense under the robbery guideline based on this cross-reference. 1 Galvan contends that this cross-reference should not apply because the district court “did not point to speci c pieces of evidence giving reason to believe that the same rearm was possessed during Mr. Galvan’s [robbery of Gomez].” At best, however, Galvan has forfeited this issue. The government points out that Galvan had a strategic reason not to question whether the same gun was used in the o ense of conviction and in his robbery. At sentencing, Galvan admitted to ring a gun while at Gomez’s home. Any argument that the gun he red was di erent from the handgun cited in the o ense of conviction would necessarily imply that Galvan violated § 922(g)(5) again with a second rearm that day. This two-gun scenario sounds more like an aggravating factor during sentencing, not a mitigating one. Even so, we construe waiver principles liberally in the defendant’s favor. United States v. Butler, 777 F.3d 382, 387 (7th Cir. 2015). Galvan stopped short of expressly admitting during sentencing that the rearm he discharged at Gomez’s home was the same handgun found in his vehicle when he 1 We found in United States v. Jones, 313 F.3d 1019, 1021–22 (7th Cir. 2002), that the relevant conduct provision at § 1B1.3 governs application of the cross-reference in § 2K2.1(c)(1)(B), the provision for homicide. Galvan has not disputed that the robbery was relevant conduct for his § 922(g)(5) conviction. 6 No. 21-2771 was arrested. This issue is best characterized as forfeited by Galvan’s failure to raise it during sentencing, so we review it for plain error, Hyatt, 28 F.4th at 781, but we would reach the same result if Galvan had preserved the issue. We have discretion to remedy a plain error at sentencing when: (1) “there is an error ‘that has not been intentionally relinquished or abandoned’”; (2) “the error is … ‘clear or obvious’”; (3) “the error ‘a ected the defendant’s substantial rights[,]’” i.e., it affected the outcome of the proceedings in the district court; and (4) “the error ‘seriously a ects the fairness, integrity or public reputation of judicial proceedings.’” United States v. Hopper, 934 F.3d 740, 766 (7th Cir. 2019), quoting Molina-Martinez v. United States, 578 U.S. 189, 194 (2016). Galvan’s argument fails at the rst step of plain-error analysis because there was no error. The court needed to nd by a preponderance of the evidence that the handgun cited in Galvan’s o ense of conviction was the same handgun used “in connection with” the robbery of Gomez. See U.S.S.G. § 2K2.1(c)(1)(A); United States v. Major, 33 F.4th 370, 379 (7th Cir. 2022). The court did so. When discussing the application of the Guidelines during Galvan’s second sentencing hearing, the district court noted that it “must also consider whether the rearm used was the same rearm.” After describing the events that transpired, the district court found it more likely than not that all the enhancements applied, including the greater o ense level resulting from use of the same gun “in connection with” the robbery. At no point did Galvan object to the nding that the same rearm was used. He argued instead that the ring of the gun did not occur in connection with a robbery. No. 21-2771 7 Ample evidence supported the court’s nding that the same gun was involved in both episodes. Gomez testi ed at sentencing that Galvan pulled out and discharged a handgun while at Gomez’s home. Less than two hours later, the arresting o cer found a handgun in the front seat of the van Galvan had stolen. The district court was justi ed in nding only one rearm was used, and Galvan never actually suggested otherwise. The district court did not explain this fact determination in detail, but we do not expect district courts to dwell on issues that are not contested at sentencing. E.g., United States v. Longstreet, 567 F.3d 911, 928–30 (7th Cir. 2009) (a rming district court’s determination of drug quantity attributable to defendant where defendant did not object to drug quantity in PSR or at sentencing hearing). There was no error. B. Increasing Galvan’s O ense Level Due to a Speci c O ense Characteristic In the alternative, Galvan maintains that he did not discharge a rearm in connection with a robbery. At sentencing, the district court applied a speci c o ense characteristic that increased Galvan’s o ense level by seven after it found “that the defendant discharged the rearm” in connection with his robbery of Gomez. See U.S.S.G. § 2B3.1(b)(2)(A). At sentencing, Galvan objected to the court’s application of this guideline provision. His counsel said that Galvan, who still faced a robbery charge in state court and did not testify on the subject, had told him that he brought the handgun to Gomez’s house because “Mr. Gomez was thinking about buying it.” In counsel’s relay of Galvan’s account, he “test red” the handgun in connection with this potential sale. The court rejected that account: “The defendant’s version of what happened is not 8 No. 21-2771 credible. It’s not what Mr. Gomez reported to the police and it’s not what Mr. Gomez testi ed to today.” The basic thrust of Galvan’s argument on appeal is the same—no gunshots occurred in connection with a robbery— but with a twist. He contends now that he red the shots before he formed the intent to commit robbery. Whether he preserved that argument for appeal or not, and thus whether we apply the standard for a preserved issue or for a forfeited one, Galvan loses on the merits. Under the more generous standard, we review for clear error the factual ndings that underlie a district court’s application of the Sentencing Guidelines. United States v. Harper, 766 F.3d 741, 744 (7th Cir. 2014). The district court’s factual ndings in applying the Guidelines must be supported by a preponderance of the evidence. See Major, 33 F.4th at 379. We will disturb those ndings only if, upon reviewing the record, “we are left with the de nite and rm conviction that a mistake has been made.” United States v. Burnett, 37 F.4th 1235, 1239 (7th Cir. 2022). The district court reasonably found here that Galvan red the shots as part of his e ort to threaten and intimidate Gomez to give up the keys to the van. There was no clear error. At the time of the rst sentencing hearing, Galvan had charges pending in state court for his armed robbery of Gomez, but his trial date had not been set. The district court wanted to proceed with the federal sentencing promptly, without waiting for the state court to resolve the robbery case. The court decided to hold a second sentencing hearing in part to hear testimony from Gomez so the court could determine whether to apply the speci c o ense characteristic for discharging a rearm in connection with a robbery under § 2B3.1(b)(2). No. 21-2771 9 Recall that Galvan arrived at Gomez’s home to return a borrowed work van and to share a meal with Gomez and his family. Galvan later pulled out a handgun and discharged it four times. Gomez testi ed that the shots surprised and scared him and his family. He said that he calmly asked Galvan to leave. As Gomez escorted Galvan away, one of Gomez’s neighbors came outside. Gomez testi ed that Galvan then red the gun two more times before he “turned around and he pointed the gun and he took the keys [to the work van] from my pocket.” When asked at sentencing if he was frightened, Gomez responded, “Yes, after that rst time when he shot. And then, after the second one, I was fearful and I just stayed behind.” As soon as Galvan drove away in the stolen van, Gomez called the police to report the robbery. Under Indiana law, an armed robbery occurs when a person knowingly or intentionally takes property from another person by using or threatening the use of force on a person while armed with a deadly weapon. See Ind. Code § 35-42-5-1(a). Galvan argues that he red the shots before he formed the intent to rob Gomez. That defense might be available as a matter of theory, but not as a matter of fact in this appeal after the district court found otherwise on the evidence. Galvan’s own hypothetical at oral argument shows how nely he is trying to slice things based on a robber’s state of mind: The Court: If a bank robber goes into the bank and res a gun in the air, and then says, “I’m here to rob the bank, everybody get down,” does the bank robbery only commence once he says “I’m here to rob the bank, everybody get down,” and he didn’t actually re the gun 10 No. 21-2771 during the commission of the robbery? That would seem totally absurd to me. Galvan’s Counsel: Based on your example we would agree. I think the more appropriate hypothetical is that if that bank robber took the gun and red several shots into the ground, then went into the bank and said, “I’m here to rob the bank,” there’s a question as to whether the shooting, or the ring of the gun, is in connection with the bank robbery. The Court: Well that’s, that’s a good hypothetical. What if he did it after the robbery? So he commits the robbery, he goes outside, he shoots the gun up in the air a couple of times, everybody hits the ground, right? And he runs away. Would that—would he have shot the gun after the commission of the robbery? Cause again, that, that seems, like, a little absurd to me—I mean maybe it’s not? Galvan’s Counsel: That would be—that would be after the robbery had occurred. I guess we’d have to— The Court: See how hard that would be to determine? Returning from the hypothetical to the facts here, according to Gomez’s testimony there was no gap between the second series of shots and the robbery. Gomez testi ed that Galvan was standing close to him when he red those shots. Galvan then turned and “pointed the gun and he took the keys.” There is no evidence of an intervening action or an interval of No. 21-2771 11 time between the gunshots and the taking of Gomez’s keys. This testimony was more than enough to show by a preponderance of the evidence that Galvan discharged a rearm “during” the robbery under Indiana law. See Ind. Code § 3542-5-1(a); Gray v. State of Indiana, 903 N.E.2d 940, 943 (Ind. 2009) (“A conviction for armed robbery may be sustained even if the deadly weapon was not revealed during the robbery.”). The district court did not err in adding seven levels under § 2B3.1(b)(2)(A). The judgment of the district court is AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
