United States v. Charles Perdue, II

R. 51(b), we limit our review to the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). We grant the motion and dismiss the appeal. Perdue failed to abide by the terms of his probation related to a 2021 Iowa conviction for intimidation with a dangerous weapon, and a warrant for his arrest was issued. See State v. Perdue, No. 07821 FECR416222 (Iowa 7th Jud. Dist. Nov. 18, 2021). In 2023, police officers in Rock Island, Illinois, were alerted to Perdue's location and arrested him. Perdue was wearing a backpack, and when officers searched it, they found a gun inside. After the officers gave Perdue the Miranda warnings, Perdue admitted that he took the gun from his girlfriend without her knowing and that he knew he was a convicted felon prohibited from possessing guns. The gun was later identified as a Glock 23, .40 caliber pistol with a 30-round extended magazine. A grand jury indicted Perdue for being a felon in possession of a firearm, see

18 U.S.C. § 922(g)(1), and Perdue ultimately pleaded guilty without a plea agreement. After a thorough Rule 11 colloquy, the court accepted his plea. Ahead of sentencing, a probation officer prepared a presentence investigation report that calculated a guidelines range of 46 to 57 months, based on a total offense level of 19 and a criminal history category of IV. In assessing Perdue's total offense level, the PSR started with a base level of 20 because the offense involved a semiautomatic firearm capable of accepting a large-capacity magazine and Perdue was prohibited from possessing the gun. See U.S.S.G. § 2K2.1(a)(4)(B)(i). The PSR added two levels because the gun Perdue possessed was stolen, id. § 2K2.1(b)(4)(A), then subtracted three levels because Perdue accepted responsibility by timely pleading guilty, id. § 3E1.1(a)-(b).^*The PSR assessed Perdue's criminal history category at IV: he incurred seven points for prior convictions, see id. § 4A1.1(a), plus one point because he was on probation when he committed this offense, see id. § 4A1.1(e). In his sentencing memorandum, Perdue objected to the two-level increase, arguing that the Seventh Circuit lacked binding authority on the meaning of "stolen" in § 2K2.1(b)(4)(A). Perdue urged the court to consider the purpose of the enhancement, which, he argued, is to deter trade of stolen guns. Because the gun belonged to his then- girlfriend, Perdue argued that it was not stolen and contended that the enhancement did not apply.

* The government objected to the initial PSR because the probation officer did not apply the two-level enhancement for possessing a stolen firearm, so the officer revised the report and applied the enhancement.

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At the sentencing hearing, the court confirmed that Perdue had enough time to review the PSR, consult with his attorney, and make objections; it then addressed Perdue's objection to the application of § 2K2.1(b)(4)(A). Perdue called his former girlfriend, Germany Montag, as a witness. She testified that during their two-year relationship, Perdue would stay at her home some nights each week, including at the time of his arrest. Montag testified that she lawfully owned two guns, which she kept in a small dial safe in a backpack underneath the bed. On the day Perdue was arrested, she explained, the two of them had an argument, and when Perdue left her apartment, he grabbed Montag's backpack (which was identical to his)—and the two guns in it—by accident. Montag did not realize Perdue's mistake until after he was arrested. She stated that she had never considered the Glock "stolen." On cross-examination, Montag admitted that Perdue knew about her guns and she had not given him permission to take them. She testified that she did not think Perdue took the guns on purpose. Detective Zachary Costas testified that when he interviewed Montag, she told him two guns and a small dial safe were in the backpack Perdue took. He confirmed that officers found only one gun in the bag recovered from Perdue and did not locate the safe.

After hearing arguments on the applicability of § 2K2.1(b)(4)(A), the court concluded that the enhancement was proper. The court first found that Perdue took the gun without permission. Perdue admitted to the police, and Montag testified, that he did not have permission to take the gun. The court rejected as speculative Montag's testimony that Perdue grabbed the bag by accident. The court also found that, regardless of their living arrangement, Montag could not legally permit Perdue to possess the gun given his status as a convicted felon. Next, the court concluded that Perdue did not intend to return the gun because Montag testified that Perdue took two guns, but police had recovered only one gun when Perdue was arrested. Based on these facts, the court determined that the gun was stolen and the enhancement was appropriate. After considering the § 3553(a) factors, the court sentenced Perdue to 48 months' imprisonment, 3 years' supervised release, and a $100 special assessment. In her Anders brief, counsel informs us that she consulted Perdue about the risks and benefits of challenging his guilty plea and confirmed that he does not wish to do so. See United States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024). Counsel therefore properly omits discussion of whether the plea was knowing and voluntary. Id. Counsel also discusses whether Perdue could plausibly argue that § 922(g)(1) violates his rights under the Second Amendment and correctly concludes that any facial

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or as-applied challenge would be frivolous. We held in Prince that § 922(g)(1) is not unconstitutional on its face, 171 F.4th at 1011, so Perdue could not plausibly raise a challenge on that basis. Prince left open the question whether "persons whose felony convictions do not suggest that firearms would be dangerous in their hands" may bring an as-applied challenge. Id. at 1011-12. Given Perdue's prior felony conviction in Iowa for intimidation with a dangerous weapon, "[i]t would not be possible to argue with a straight face that firearms are harmless" in his hands. See id. at 1011; see also United States

v. Watson, 171 F.4th 1012, 1024 (7th Cir. 2026) (holding that Congress can lawfully disarm "dangerous felons").

Next, counsel rightly concludes that Perdue cannot plausibly contest the two- level increase for possessing a stolen gun. See U.S.S.G. § 2K2.1(b)(4)(A). That increase

"applies regardless of whether the defendant knew or had reason to believe that the firearm was stolen." United States v. Price, 28 F.4th 739, 755 (7th Cir. 2022) (quoting § 2K2.1(b)(4), cmt. n.8(B)). Though the Guideline does not define "stolen," other circuits have determined that a gun is stolen for the purposes of § 2K2.1(b)(4)(A) when a person intends to deprive the owner of the rights and benefits of owning the gun. See United States v. Lavalais, 960 F.3d 180, 188 (5th Cir. 2020) (collecting cases). A district court need only find, by a preponderance of the evidence, that the facts are sufficient to support the enhancement, and we would reverse if the court clearly erred in its factual findings. United States v. Prieto, 85 F.4th 445, 448 (7th Cir. 2023).

Here, the record supports the district court's finding that Perdue possessed a stolen gun. First, the court found that Perdue admitted that he took the gun without Montag's permission. Second, the court determined that Montag did not, and could not, give Perdue permission to take the gun. These facts establish that Perdue took the gun knowing that he was not their rightful owner. Third, the court found that Perdue did not intend to return the gun because he took two guns and police recovered only one gun from the bag when they arrested Perdue. Based on these facts, we agree with counsel that it would be frivolous to argue that the district court erred, clearly or otherwise, in concluding that the gun police recovered from Perdue's possession was stolen. See Lavalais, 960 F.3d at 188.

As for substantive reasonableness, we agree with counsel that any challenge to Perdue's within-guidelines sentence would be frivolous. A within-guidelines sentence is presumed to be substantively reasonable, see United States v. Ambriz-Villa, 28 F.4th 786, 791-92 (7th Cir. 2022), and there are no readily discernible facts in the record that would rebut this presumption.

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Moreover, counsel correctly concludes that it would be frivolous to assert that the court procedurally erred at sentencing. The court properly considered Perdue's arguments in mitigation as well as the § 3553(a) factors: Perdue's personal history and characteristics (including his multiple felonies and his failure to comply with probation—even after he had been sentenced to three years' incarceration for a prior violation); the need for deterrence (considering that, each time Perdue had been on probation, he committed another felony); and the risk to the public (Perdue's Iowa conviction involved firing a gun into an occupied vehicle). Though the court rejected as a mitigating factor Perdue's upbringing in a violent neighborhood, it acknowledged that Perdue's age (then 25 years old) was somewhat mitigating. So long as the record establishes that the district court considered arguments in mitigation, we will not find procedural error. See United States v. Hendrix, 74 F.4th 859, 868 (7th Cir. 2023). On balance, the court settled on a sentence of 48 months, near the bottom of Perdue's advisory range. It is not our role to reweigh these factors on appeal. See Ambriz-Villa,

28 F.4th at 791-92. Finally, counsel properly declines to contest the conditions of Perdue's supervised release. She correctly determines that Perdue waived any such challenge because Perdue had advance notice of the conditions and, at sentencing, expressly refused the court's invitation to object to the conditions of supervised release. See, e.g., United States v. Flores, 929 F.3d 443, 448-49 (7th Cir. 2019).

We GRANT counsel's motion to withdraw and DISMISS the appeal.

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