The 7th Circuit Court of Appeals has affirmed the application of a robbery guideline provision used in sentencing a man for illegally possessing a firearm after finding that the gun was also involved in a robbery he committed earlier that day.
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.
Galvan worked part time for Asencio Gomez in construction near Indianapolis and occasionally used Gomez’s van for the job.
On one such instance in 2017, Galvan returned the vehicle to Gomez’s home, had a meal there, and then abruptly fired shots and stole the keys back from Gomez before leaving in the van.
Hours later, Galvan was found by police after he threatened several men in an apartment complex while brandishing the handgun. Police arrested Galvan and one of the officers found a handgun in the driver’s seat of the stolen van. Galvan was later charged with and pled guilty to possessing that handgun as an alien unlawfully in the United States.
At the time, Galvan faced a pending charge in state court for armed robbery of Gomez’s van, but that charge was later dismissed.
The Indiana Southern District Court later found that the guidelines for robbery governed Galvan’s firearm-possession offense because he had used the same handgun when he robbed Gomez. Among other guidelines findings, Galvan’s total offense level increased from 14 to 26.
The district court sentenced Galvan to nearly six years in prison and two years of supervised release, prompting him to file a motion asserting in part that his counsel was ineffective for failing to file a notice of appeal when asked.
The motion was granted and the district court reissued the judgment, but the 7th Circuit Court of Appeals affirmed in United States of America v. Nain Galvan, 21-2771.
First, it noted that ample evidence supported the court’s finding that the same gun was involved in both episodes to Gomez’s home and at the apartment complex.
“The district court was justified in finding only one firearm 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,” 7th Circuit Judge David Hamilton wrote. “There was no error.”
Turning to the specific offense characteristic that increased Galvan’s offense level by seven, the 7th Circuit concluded that the district court reasonably found that Galvan fired the shots as part of his effort to threaten and intimidate Gomez to give up the keys to the van.
Specifically, the appellate court found that no evidence of an intervening action or an interval of 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 firearm ‘during’ the robbery under Indiana law,” the opinion concluded. “The district court did not err in adding seven levels under § 2B3.1(b)(2)(A).”