United States of America v. Edward M. Bruce

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 16, 2020
Decided January 4, 2021
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-3489
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD M. BRUCE,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Western Division.
No. 3:18-CR-50020(1)
Philip G. Reinhard,
Judge.
O R D E R
The district court sentenced Edward Bruce to 110 months in prison after he was
convicted for drug and gun offenses. Bruce appeals and argues that the court
procedurally erred at sentencing because it incorrectly stated that the police found body
armor in his house at the time of his arrest. Although the body armor statement was not
accurate, the court did not rely on this information when imposing the sentence.
Moreover, Bruce did not show a reasonable probability that he would have received a
lower sentence if the court had not been under this mistaken assumption. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 19-3489 Page 2
I
Police officers arrived at Bruce’s home in Rockford, Illinois, on the evening of
February 25, 2018, to execute an arrest warrant for failing to appear in connection with a
burglary charge. When Bruce answered the door and the officers ordered him to put his
hands up, he instead turned around and ran back inside. The officers chased Bruce
through the house; as he fled, Bruce dropped a loaded handgun with an extended
magazine and three plastic bags containing a heroin/fentanyl mixture, cocaine, and
marijuana. The officers cornered Bruce in a bedroom and attempted to take him into
custody. Bruce then resisted the officers and, during the struggle, an officer’s hand was
broken. After arresting Bruce, the officers recovered the gun, drugs, and nearly $1500
from his pocket.
Bruce pleaded guilty to possessing a controlled substance with intent to
distribute (Count 1), 21 U.S.C. § 841(a)(1), possessing a firearm as a felon (Count 2),
18 U.S.C. § 922(g)(1), and possessing a firearm in furtherance of a drug trafficking crime
(Count 3), 18 U.S.C. § 924(c)(1)(A)(i).
A probation officer prepared the presentence investigation report and
determined that Bruce had a total offense level of 19 and a criminal history category of
IV. This resulted in a guidelines range of 46 to 57 months for Counts 1 and 2 and a
statutory minimum sentence of 60 months for Count 3 to be served consecutively.
At the sentencing hearing, the government asserted that, on top of the
consecutive five-year term on Count 3, a within-guidelines sentence on Counts 1 and 2
was appropriate because of the circumstances surrounding Bruce’s arrest. Instead of
surrendering, Bruce attempted to flee, dropped a loaded gun in his home with other
family members present (creating a risk that it could have accidently fired and killed
someone), and resisted arrest, causing an officer to break his hand. The government also
highlighted Bruce’s lengthy criminal history and that he was selling a substance
containing fentanyl—a synthetic opioid that has caused a rash of overdose deaths in
Illinois in the past decade.
Before Bruce’s counsel presented his argument and before Bruce’s allocution, the
court explained that it was concerned about the circumstances of Bruce’s arrest, noting
that he had fled from police and tossed a loaded gun with an extended magazine. It also
stated:

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No. 19-3489 Page 3
There was some body armor that was found. I don’t know if it was in his
room, but it was found in the house. Maybe that’s attributable to someone
else, but it shows that he is hanging around with people who -- if it
doesn’t fit him, he is hanging around with people who have a use for
body armor, which is dangerous.
Although neither party objected to this statement, nothing in the record or in the
sentencing materials before the court states that police found body armor in the house.
Bruce’s counsel proceeded to argue that he should receive a downward variance
to 24 months’ imprisonment on Counts 1 and 2. This was justified, he contended,
because Bruce had a tumultuous upbringing: He was born addicted to cocaine, his
parents were not involved in his life, and he has struggled with a marijuana addiction
and mental impairments. Counsel also pointed out that, because of the mandatory
sentence on Count 3, even with this variance Bruce would still receive a substantial
sentence of seven years’ imprisonment. See Dean v. United States, 137 S. Ct. 1170, 1178
(2017) (explaining that a court may consider the sentence under § 924(c) when
determining an appropriate consecutive sentence for the predicate offense(s)).
The district court imposed 50 months’ imprisonment on Counts 1 and 2, to run
consecutively to the 60-month mandatory sentence on Count 3. Just before this
pronouncement, the court addressed the Section 3553(a) factors and noted that the
offenses were aggravated because the drugs recovered included heroin mixed with
fentanyl, Bruce resisted arrest, he possessed the loaded gun with the extended
magazine, and an officer was injured. The court made no further mention of body
armor. It acknowledged Bruce’s difficult childhood, but also noted his long criminal
history and how multiple stints of probation did not stop him from continually
returning to criminal behavior. The court reasoned that, after considering “all the facts
here and the 3553(a) factors,” it could not grant a downward variance but would
sentence Bruce closer to the lower end of the guidelines range.
II
On appeal, Bruce argues that the district court erred because it relied on false
information—that the police found body armor in Bruce’s home when he was
arrested—when it imposed its sentence. By relying on inaccurate information, Bruce
argues, the court committed a procedural error that affects his substantial rights and
calls into question the fairness of the sentencing proceeding.

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No. 19-3489 Page 4
Before addressing the merits of Bruce’s argument, we confirm that plain-error
review applies. Both parties agree that because Bruce did not object to the court’s
misstatement at the sentencing hearing, he forfeited his objection, and this court should
review for plain error. We explained in United States v. Pennington, 908 F.3d 234, 238
(7th Cir. 2018), that under Federal Rule of Criminal Procedure 51(a), a defendant need
not object to (or take exception to) a district court’s explanation of the sentence to
preserve an argument for appeal. Yet in Pennington, the district court stated allegedly
inaccurate information after it announced the sentence. Id. at 237. Here, the court
mentioned the body armor before it made any sentencing pronouncement (and even
before Bruce presented his arguments), so Rule 51(a) does not apply. Bruce had a
chance to correct the judge’s error before the sentence was handed down, but he failed
to do so; the parties are correct that this argument is forfeited, and we review only for
plain error. See United States v. Oliver, 873 F.3d 601, 608–09 (7th Cir. 2017).
Bruce has a due process right to be sentenced based on accurate information,
see Pennington, 908 F.3d at 239, and relying on clearly erroneous facts when handing
down a sentence is a “significant procedural error.” United States v. Corona-Gonzalez,
628 F.3d 336, 340 (7th Cir. 2010). To receive a new sentencing hearing under plain-error
review, Bruce must show that “(1) there was error, (2) it was plain rather than subject to
reasonable dispute, (3) it affected his substantial rights, and (4) the court should exercise
its discretion to correct the error because it seriously affected the fairness, integrity, or
public reputation of the judicial proceedings.” Oliver, 873 F.3d at 607 (citing
United States v. Seals, 813 F.3d 1038, 1045 (7th Cir. 2016)).
There is no question that the court’s statement about the body armor was
incorrect. The government concedes as much. Nothing in the record, including the plea
agreement and presentence investigation report with detailed accounts of the offense,
mentioned any body armor associated with Bruce, nor did either party mention it in
their sentencing memoranda or at the hearing.
Viewing the sentencing transcript in its entirety, the court did not rely on its
mistaken belief about the body armor when it imposed Bruce’s sentence. A court shows
reliance on inaccurate information when imposing a sentence if it “gives explicit
attention to it, founds its sentence at least in part on it, or gives specific consideration to
the misinformation before imposing [the] sentence.” United States v. Miller, 900 F.3d 509,
513 (7th Cir. 2018) (quoting United States v. Chatman, 805 F.3d 840, 844 (7th Cir. 2015)).
Although the court did mention the body armor in passing during the hearing, it did

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No. 19-3489 Page 5
not discuss it when applying the 18 U.S.C. § 3553(a) factors, explaining its sentencing
rationale, and handing down the sentence. Rather, after issuing the sentence, the court
explained that what made Bruce’s offense “more serious is what happened at the time
of [his] arrest.” It proceeded to discuss the undisputed facts about Bruce’s arrest—that
he ran from the officers, caused an officer to break his hand during the struggle, and
that he had a loaded weapon with an extended magazine. The court also noted that
Bruce was arrested with a bag containing not just heroin, but heroin laced with
fentanyl. It was these aggravating factors—rather than any supposed body armor—that
the court relied on when sentencing Bruce.
And even if the court had relied on the body armor, Bruce would also need to
show that the court’s error affected his substantial rights, and that we should remand
because it affects the overall integrity of the judicial proceedings. See Oliver, 873 F.3d at
607. To show an effect on his substantial rights, Bruce must demonstrate a reasonable
probability that, if the district court had not relied on this erroneous information, his
sentence would have been different. See Miller, 900 F.3d at 512. Bruce has not made this
showing. The court mentioned the body armor only once during the middle of the
sentencing hearing and did not refer back to it when handing down the sentence later.
At that point, the court calculated the correct guidelines range, and sentenced Bruce
within that range—indeed, toward the lower end. It explained that the significant
aggravating factors that resulted in a within-guidelines sentence (rather than the
downward variance that Bruce requested) included the fact that Bruce resisted arrest,
dropped the loaded gun, and injured the officer. Bruce has not shown a reasonable
probability that, in light of these aggravating factors, the body armor comment affected
the court’s rationale when handing down his within-guidelines sentence. See id. at 513.
AFFIRMED

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