United States of America v. Raymond Bowie

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 6, 2023
Decided November 28, 2023
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-2959
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAYMOND BOWIE,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:21-cr-00309-JPH-DML-1
James P. Hanlon,
Judge.
O R D E R
Raymond Bowie pleaded guilty to possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). At sentencing the district court accurately calculated an
advisory range of 37 to 46 months’ imprisonment but imposed an upward variance to 72
months to reflect a number of aggravating factors it found were not adequately accounted
for by Bowie’s Guidelines range. One of those factors was Bowie’s possession of a fully
automatic firearm.
What concerns Bowie on appeal also leaves us with uncertainty on a point that is
material to the district court’s consideration of Bowie’s Guidelines range and, by
extension, the basis for its upward variance. The confusion rooted itself in the PSR’s
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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determination that Bowie’s base offense level was 22 under U.S.S.G. § 2K2.1(a)(3), which
calls for an enhanced base offense level if:
(A) the offense involved a (i) semiautomatic firearm that is capable of
accepting a large capacity magazine; or (ii) firearm that is described in 26
U.S.C. § 5845(a); and (B) the defendant committed any part of the instant
offense subsequent to sustaining one felony conviction of either a crime of
violence or a controlled substance offense.
U.S.S.G. § 2K2.1(a)(3)(A)–(B) (2021).
According to paragraph 15 of the PSR, § 2K2.1(a)(3) applied “because the offense
involved a semiautomatic firearm capable of accepting a large capacity magazine” and
because Bowie had previously been convicted of armed robbery, a crime of violence. The
district court credited this position at sentencing, adopting “what’s in the presentence
investigation report,” including paragraph 15, “as [its] own findings for the offense
level.” Tr. 26:10–11.
Sentencing seemed to proceed from there on the view that the base offense level
was 22 not because Bowie possessed an automatic weapon, but rather, as the district court
stated, “because the offense involved a semiautomatic firearm capable of accepting a
large capacity magazine.” Tr. 25:19–22. So when it came time to apply the sentencing
factors enumerated in 18 U.S.C. § 3553(a), the district court reached the sensible
conclusion that an upward variance was necessary in part to account for the nature of
Bowie’s firearm—a Ruger AR 556 modified to fire automatically. In the final analysis, the
district court sentenced Bowie to 72 months—approximately double the low end of the
advisory range.
What no one seemed to realize—not the government, not Bowie, not the district
court, not the probation officer—is that § 2K2.1(a)(3)(A)(ii), which sets forth an alternative
ground for the application of § 2K2.1(a)(3)’s enhanced base offense level, applies to
weapons like Bowie’s. It does so through its cross-reference to 26 U.S.C. § 5845(a), a
provision that applies by its terms to machineguns. See 26 U.S.C. § 5845(b) (defining
“machinegun” to include “any weapon which shoots, is designed to shoot, or can be
readily restored to shoot, automatically more than one shot, without manual reloading,
by a single function of the trigger”). Through § 2K2.1(a)(3)(A)(ii), then, the Sentencing
Commission expressly factored the special danger posed by automatic weapons into

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Bowie’s advisory range. Put differently, the district court’s determination that Bowie’s
offense level was 22 under § 2K2.1(a)(3), and its calculation of an advisory range based
on that offense level, necessarily accounted for the fact that Bowie’s Ruger was automatic.
No doubt, the district court was free to disagree with the judgment of the
Sentencing Commission that a 37-to-46-month sentence will generally be sufficient in
such cases. See Kimbrough v. United States, 552 U.S. 85, 101–02, 108–09 (2007). What
concerns us on appeal, however, is the possibility that the district court grounded Bowie’s
upward variance not in reasoned disagreement with the Commission, but rather on the
mistaken view that § 2K2.1(a)(3) does not account for Bowie’s possession of an automatic
weapon in this case. Bowie argues that such a mistake occurred here, rendering his
sentence procedurally unsound. See Gall v. United States, 552 U.S. 38, 51 (2007). He asks
us to vacate his sentence and remand for resentencing.
The government concedes Bowie’s framing of the alleged mistake here as one
implicating procedural error. It posits, however, that the district court was aware that
§ 2K2.1(a)(3) applies to defendants convicted of possessing automatic weapons. On the
government’s account, the sentencing transcript reveals not a misunderstanding of the
Guidelines, but rather a policy disagreement with the Sentencing Commission.
Regardless, the government insists that any procedural error is harmless and that, in any
event, Bowie forfeited the arguments he raises on appeal by not presenting them to the
district court.
The government’s position on waiver stands in irreconcilable tension with our
recent decision in United States v. Wood, 31 F.4th 593 (7th Cir. 2022). The error Bowie
challenges on appeal occurred during the district court’s explanation of its sentence. He
was therefore under no obligation to object to preserve the argument for appeal. Id. at
597–98.
On the merits, and represented by very able counsel, Bowie raises a valid concern,
and there is much in the transcript that supports his position. Not only did the district
court adopt paragraph 15 of the PSR in full, it stated on the record that Bowie’s “base
offense level [was] 22 … under Section 2K2.1(a)(3) … because the offense involved a
semiautomatic firearm capable of accepting a large capacity magazine,” not because
Bowie’s Ruger AR 556 was modified to fire automatically. Tr. 25:19–22. At no time during
Bowie’s sentencing hearing did the district court ever reference § 2K2.1(a)(3)(A)(ii), or the
relevance to Bowie of that provision’s cross-reference to 26 U.S.C. § 5845(a). This silence

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leaves us unable to discern whether the district court was aware that the Sentencing
Commission considered a base offense level of 22 appropriate even for § 922(g)(1)
defendants convicted of possessing automatic weapons.
The government disagrees. It directs our attention to the district judge’s
explanation that although it thought § 2K2.1(a)(3) accounted for some aspects of Bowie’s
offense, including the fact Bowie’s Ruger could “accept an extended magazine,” it did
not believe that that provision “fully account[ed] for the fact that it was a fully automatic
weapon.” Tr. 44:8–15. The government reasons that the district court’s use of the qualifier
“fully” implies that it believed that § 2K2.1(a)(3) accounted at least in part for the fact that
Bowie’s Ruger could fire automatically. On that basis, it encourages us to conclude that
the district court not only was aware of § 2K2.1(a)(3)(A)(ii)’s application to automatic
weapons but that its upward variance reflected a policy disagreement with the
Commission’s decision to punish the possession of such weapons no differently from less
dangerous weapons covered by § 2K2.1(a)(3).
It might be possible to view the transcript that way. Given the evidence on the
other side, however, we are left with meaningful concerns on the record before us that
Bowie’s sentence may be procedurally unsound. And given the emphasis the district
court placed on the automatic nature of Bowie’s firearm in upwardly varying from the
advisory range, we cannot say that the error was harmless. See United States v. Black, 815
F.3d 1048, 1056–57 (7th Cir. 2016).
In the face of much uncertainty, and mindful of the importance of not only
accurately calculating the applicable Guidelines range but also understanding the
conduct embodied by that range, we think the most prudent course is to vacate Bowie’s
sentence and remand for a plenary resentencing hearing.
On remand, the parties can fully litigate the relevance, if any, of § 2K2.1(a)(3)(A)(ii)
to Bowie’s sentence. The district court may well determine that the same sentence is
appropriate. But that decision will be for the district court to make in the first instance
after revisiting Bowie’s sentence in light of the concerns identified in this order. Because
we vacate Bowie’s sentence in full to allow for a plenary resentencing, we need not
consider Bowie’s additional objection that the district court added to his written
judgment a condition of supervised release not orally pronounced at sentencing.
For these reasons we VACATE Bowie’s sentence and REMAND for resentencing.

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