Unauthorized Taking Can Support a Stolen-Firearm Enhancement in a Felon-in-Possession Case

Introduction

In United States v. Charles Perdue, II, the Seventh Circuit considered whether any nonfrivolous issue remained after Charles Perdue pleaded guilty to possessing a firearm as a felon and received a 48-month prison sentence. The principal potential issues were a Second Amendment challenge, a sentencing enhancement for possessing a stolen firearm, and the reasonableness of his sentence. Appointed counsel sought to withdraw under Anders v. California, asserting that an appeal would be frivolous.

The order applies existing law rather than establishing a binding new rule. It is designated a nonprecedential disposition.

Summary of the Opinion

Police arrested Perdue on a probation warrant and found a gun in the backpack he was carrying. He pleaded guilty under 18 U.S.C. § 922(g)(1). At sentencing, he contested a two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A), arguing that the gun belonged to his then-girlfriend and had been taken accidentally rather than stolen. The district court found that he took it without permission and did not intend to return it. It calculated an advisory range of 46 to 57 months and imposed 48 months’ imprisonment, three years’ supervised release, and a $100 special assessment.

The Seventh Circuit agreed with counsel that the identified appellate challenges would be frivolous. It granted counsel’s motion to withdraw and dismissed the appeal.

Analysis

Precedents Cited

  • Anders v. California and United States v. Bey: These decisions frame review when appointed counsel concludes an appeal is frivolous. Because counsel’s submission appeared thorough and Perdue did not respond, the court limited its review to the subjects counsel addressed.
  • United States v. Larry: This decision supported counsel’s omission of a challenge to the guilty plea. Counsel had consulted Perdue about the risks and benefits of contesting it, and he did not wish to do so.
  • United States v. Rahimi, United States v. Prince, and United States v. Watson: Briefing had been suspended pending Rahimi and Prince, but this order attributes no specific substantive holding to Rahimi. Prince foreclosed a facial challenge to § 922(g)(1) while leaving open a possible as-applied challenge for people whose felonies do not suggest that firearms would be dangerous in their hands. Watson recognized Congress’s authority to disarm dangerous felons. Perdue’s prior conviction for intimidation with a dangerous weapon made that possible as-applied argument untenable on his facts.
  • United States v. Price, United States v. Lavalais, and United States v. Prieto: Price establishes that the stolen-firearm enhancement applies regardless of whether the defendant knew or had reason to believe the gun was stolen. The court drew on Lavalais for the understanding that a gun is stolen when someone intends to deprive its owner of the rights and benefits of ownership. Prieto supplied the proof and review standards: supporting facts must be established by a preponderance of the evidence, and factual findings are reviewed for clear error.
  • United States v. Ambriz-Villa and United States v. Hendrix: Ambriz-Villa supplied the rebuttable presumption that a within-guidelines sentence is substantively reasonable and cautioned against appellate reweighing of sentencing factors. Under Hendrix, the record’s demonstration that the district court considered Perdue’s mitigation arguments defeated the proposed procedural challenge.
  • United States v. Flores: This decision supported treating a challenge to supervised-release conditions as waived: Perdue had advance notice of the conditions and expressly declined an opportunity to object at sentencing.
  • State v. Perdue: The opinion cited this state case as background for Perdue’s earlier conviction and probation warrant, not as authority establishing a rule applied on appeal.

Legal Reasoning

The stolen-firearm finding was the central sentencing dispute. Perdue’s former girlfriend testified that their backpacks were identical, that he took hers by accident, and that she did not consider the gun stolen. She also acknowledged that she had not permitted him to take her guns. The district court rejected her account of an accidental taking as speculative. It relied on Perdue’s admission that he took the gun without her knowledge and inferred an intent not to return it from testimony that two guns had been in the backpack although police recovered only one. The Seventh Circuit concluded that an appeal alleging clear error in those findings would be frivolous.

Perdue’s knowledge that the firearm was “stolen” was not a separate requirement for the enhancement. Nor did the owner’s personal view of whether a theft occurred control the inquiry. The court’s conclusion rested on its findings about the unauthorized taking and intent to deprive her of the gun, not on a rule that every mistaken or temporary taking is necessarily theft. The district court also observed that permission from the owner could not make Perdue’s possession lawful under the federal prohibition applicable to him; its finding that she had not given permission was independently relevant to the enhancement.

The remaining sentencing challenges offered no viable ground for appeal. The district court considered Perdue’s personal history, repeated offenses while on probation, need for deterrence, risk to the public, and mitigation arguments. It acknowledged his age as somewhat mitigating but rejected his upbringing in a violent neighborhood as a mitigating factor. The resulting 48-month sentence was near the bottom of the advisory range, and the record disclosed nothing that would rebut the presumption of substantive reasonableness.

Impact

The disposition illustrates how existing Seventh Circuit law applies to a defendant with a violent, firearm-related felony: the facial Second Amendment challenge was foreclosed by Prince, and Perdue’s record made its reserved as-applied theory implausible. It also shows that the stolen-firearm enhancement may be supported by circumstantial findings of unauthorized taking and intent to deprive an owner, even when the owner does not describe the gun as stolen. Because the order is nonprecedential, it does not resolve every possible dispute about the meaning of “stolen” or create a new binding test for future cases.

Complex Concepts Simplified

  • An Anders motion is counsel’s request to withdraw after identifying potential appeal issues and concluding that none has a nonfrivolous basis. The appellate court still reviews the identified issues.
  • Facial versus as-applied challenge: A facial challenge attacks a statute generally; an as-applied challenge argues that enforcing it against this particular person is unconstitutional.
  • Preponderance and clear error: At sentencing, a disputed supporting fact must be more likely true than not. On appeal, a factual finding is not reversed merely because another interpretation of the evidence is possible.
  • Procedural versus substantive reasonableness: The first concerns how the sentence was reached, including consideration of relevant arguments; the second concerns whether the sentence itself is reasonable.
  • Waiver: Expressly declining to object after an opportunity to do so can relinquish an appellate challenge, as occurred with the supervised-release conditions here.

Conclusion

The Seventh Circuit found no nonfrivolous basis to challenge Perdue’s conviction or sentence. Its most instructive points are the fact-dependent application of the stolen-firearm enhancement and the limits of a Second Amendment challenge by a person with a dangerous, firearm-related felony. Those lessons arise from an application of existing authority in a nonprecedential Anders disposition, not from a newly binding rule.