United States of America v. Lawrence M. W. Lusk

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 15, 2023
Decided December 19, 2023
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-1203
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAWRENCE M. W. LUSK,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:21-CR-100 DRL
Damon R. Leichty,
Judge.
O R D E R
Lawrence Lusk pleaded guilty to possessing a firearm with a prior felony
conviction. He received a sentence of 46 months’ imprisonment—a term above the
applicable range under the Sentencing Guidelines. On appeal, Lusk argues that his
sentence is the product of procedural error and is substantively unreasonable. Because
the district court relied on appropriate considerations and adequately explained the
sentence in relation to the applicable sentencing factors, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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Background
Lusk brought a loaded firearm, concealed in a bag, to the factory where he
worked in South Bend, Indiana. He placed the bag in the trash can at his workstation.
His supervisor learned of the firearm and called the police. Before arriving, the officers
confirmed that Lusk did not have a gun permit and that he had previously been
convicted of a felony. After finding the weapon, officers arrested Lusk and found small
amounts of marijuana and cocaine on his person. Lusk later pleaded guilty, without a
plea agreement, to one count of possession of a firearm as a felon. 18 U.S.C. § 922(g)(1).
In the presentence investigation report (PSR), the probation officer calculated a
total offense level of 12: a base offense level of 14 minus two levels for acceptance of
responsibility. U.S.S.G. § 3E1.1(a). Lusk’s criminal history category was VI based on his
multiple previous firearm and drug convictions. The offense level and criminal history
category yielded a guidelines range of 30 to 37 months’ imprisonment.
Both parties also filed sentencing memoranda. Lusk argued for a
below-guidelines sentence of 27 months because of mitigating factors: He suffered from
post-traumatic stress disorder from two previous gunshot injuries, but he had
successfully completed his GED, obtained employment, and was in a steady long-term
relationship. Further, he did not use the firearm or threaten anyone during the offense
of conviction, and he accepted responsibility. The government asked for an
above-guidelines sentence of 51 months, highlighting Lusk’s criminal history and high
likelihood of reoffending. The government argued that a prior 34-month sentence for
the same offense had “done little to correct his conduct.”
At the sentencing hearing, the district court adopted the PSR without objection.
After hearing argument and discussing the factors under 18 U.S.C. § 3553(a), the court
sentenced Lusk to 46 months’ imprisonment. The court explained that the guidelines
range was too low for Lusk’s conduct. It noted the inherent risks of bringing a loaded
firearm into a workplace and the dangerous pairing of drugs and firearms. The court
further emphasized the number of Lusk’s previous convictions, which included
multiple firearm offenses.
During its remarks, the court explained that Lusk’s conduct was more dangerous
than many other situations of firearm possession. The court cited, unprompted,
statistics from the Department of Labor about violence in the workplace. It also referred
to the United States Sentencing Commission’s data on the recidivism rates of firearm
offenders, and pointed out that Lusk was already ahead of the average. After the

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hearing, the court issued a sentencing memorandum memorializing its explanation of
the sentence and its consideration of the § 3553(a) factors.
Analysis
Lusk contends that the district court procedurally erred by considering, or giving
undue weight to, certain factors. He also argues that the court imposed a substantively
unreasonable sentence. In particular, Lusk claims the court (1) failed to account for the
lack of harm Lusk caused; (2) improperly considered data on workplace violence and
recidivism rates for firearm offenders; (3) overemphasized Lusk’s criminal history, and
(4) improperly cited the presence of drugs as an aggravating factor.
Lusk casts most of his challenges as procedural, but the government submits,
and we agree, that most of them are substantive. Charitably reading his arguments, part
of the second argument listed above could be considered procedural: that the court
erroneously based the sentence on statistics about workplace violence, which were
outside the record. Lusk does not rely on the line of cases holding that it is procedural
error to rely on inaccurate information in selecting a prison sentence. See, e.g., United
States v. Tucker, 404 U.S. 443, 447 (1972); United States v. Pennington, 908 F.3d 234, 239
(7th Cir. 2018). And Lusk’s repeated references to the consideration of “extraneous”
information seem to invoke a procedural error. We review matters of sentencing
procedure de novo. United States v. Morgan, 987 F.3d 627, 632 (7th Cir. 2021).
Lusk maintains that the district court should not have considered national
statistics on workplace violence because no such violence occurred here and because
this court’s precedent allows courts to contextualize a defendant’s offenses with only
local, not national, data. See United States v. Saldana-Gonzalez, 70 F.4th 981, 984 (7th Cir.
2023). To Lusk, the court’s mention of these statistics “casts doubt on the validity” of the
sentence. See United States v. Figueroa, 622 F.3d 739, 741 (7th Cir. 2010).
But the court did not err by mentioning workplace-violence statistics, even
though Lusk did not commit any violence with the gun. By citing the statistics, the court
simply illustrated the seriousness of Lusk's possession compared to other possible
cases, such as possessing a gun within the home or hunting with a firearm. Lusk
brought a gun to work—in violation of his employer’s rules and of federal law, as the
government emphasizes—and the court took care to mention that there was no
evidence that Lusk intended to use the gun for violence. Bringing a loaded firearm into
a heavily populated place, the court said, nevertheless presented potential danger.
While this point could have been made without citing statistics, it stands to reason that

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an unsecured gun in a workplace setting presents risks, and Lusk offered no benign
purpose for his actions. This type of inference is permissible. See United States v. Ramirez,
783 F.3d 687, 689 (7th Cir. 2015).
For the same reasons, using national statistics instead of local data on workplace
violence was permissible here. True, if a district court is situating a defendant’s actions
among statistical trends, it is better to focus on local rather than national data so as not
to blame a defendant for social issues only tangentially related to the defendant’s
conduct. United States v. Hendrix, 74 F.4th 859, 869 (7th Cir. 2023). But the court was not
saying that Lusk’s offense contributed to a national trend. Nor was the court blaming
Lusk for any social issues. The court mentioned the statistics to explain the dangerous
nature of Lusk’s conduct. Regardless, use of extraneous data is an error only in support
of an irrelevant or inflammatory point, such as during a tirade about social ills
unrelated to the defendant. See Saldana-Gonzalez, 70 F.4th at 985–86 (collecting cases);
United States v. Hatch, 909 F.3d 872, 875 (7th Cir. 2018). Here, the court’s citation data
was only a footnote to its analysis. And Lusk has not argued, nor cited evidence to
show, that the data were inaccurate or unreliable. See Hendrix, 74 F.4th at 870. Therefore,
he has not demonstrated any procedural error.
Despite Lusk’s characterizations, the rest of his arguments go to the substantive
reasonableness of the sentence. Lusk contends that the court failed to adequately
explain the sentence and the degree of the deviation from the guidelines range. These
would be procedural errors under Gall v. United States, 552 U.S. 38, 51 (2007), because
courts must provide enough reasoning to allow for meaningful appellate review, and
greater deviations from the guidelines require more thorough justifications.
E.g., Hendrix, 74 F.4th at 867; Morgan, 987 F.3d at 632. But behind Lusk’s procedural
label are arguments that the court inappropriately considered or gave undue weight to
specific factors: the location of the offense, the involvement of drugs, his criminal
history, and statistics about firearm-recidivism rates. What a court considered, and how
a court weighed various factors, goes to the substantive reasonableness of the sentence,
which we review for an abuse of discretion. See United States v. Jerry, 55 F.4th 1124,
1130–33 (7th Cir. 2022).
To Lusk, the district court unjustifiably determined that bringing the gun to
work posed “extra risks” that the guidelines do not account for. But the location is part
of the “nature and circumstances of the offense,” 18 U.S.C. § 3553(a)(1); see United States
v. Mikulski, 35 F.4th 1074, 1076 (7th Cir. 2022), and how a defendant possesses a firearm
affects “the gravity of the offense.” United States v. Hill, 563 F.3d 572, 579 (7th Cir. 2009);

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see id. (collecting cases). The court drew a reasonable inference that it was more
dangerous to bring a loaded gun into the factory and hide it than it would be to possess
a gun in a more secure or private location.
Lusk also contends that the district court gave disproportionate weight to his
criminal record, which the criminal history calculation already accounts for. But district
courts may consider the “regularity and quality” of defendant’s criminal record
separately from the Guidelines calculation (which looks only at the number of
convictions). United States v. Settles, 43 F.4th 801, 807 (7th Cir. 2022). They may also
consider recidivism risks and specific deterrence. 18 U.S.C. § 3553(a)(2)(B), (C); Hatch,
909 F.3d at 876. The court here justifiably found Lusk’s prior criminal record to be
significant. His criminal history spanned 22 years and 7 felonies, and he easily fit within
the highest criminal history category of VI. Lusk had repeatedly committed
firearm-related offenses and served time for them, but he still recidivated. The court
said it would not “work backwards” by imposing a lower sentence than Lusk had
received for similar past offenses.
Lusk says further that the district court placed undue weight on the drugs Lusk
possessed when he brought the firearm to work. Courts have recognized that the
combination of weapons and drugs can increase the risk of danger. See United States v.
Long, 79 F.4th 882 (7th Cir. 2023) (carrying a loaded handgun while possessing cocaine
is a “very serious offense”); United States v. Banks, 764 F.3d 686, 690 (7th Cir. 2014)
(defendant’s “continued involvement with guns and drugs” was “troubling”);
see generally United States v. Yancey, 621 F.3d 681 (7th Cir. 2010). The court noted that
Lusk’s last federal offense before this one also involved the “dangerous marriage” of
drugs and firearms, and courts can consider the similarity of the current offense to prior
ones during sentencing. See United States v. Mansfield, 21 F.4th 946, 956–59 (7th Cir.
2021).
Finally, Lusk asserts that the district court inappropriately relied on the
recidivism rates of people convicted of firearms offenses, which say nothing about
Lusk’s own risk of offending again. But the court specifically tied the statistics to Lusk’s
risk of recidivism: It noted that Lusk, having previously committed numerous firearm-
related offenses, already had exceeded the high recidivism rate for firearm offenders.
Lusk’s “specific recidivism with firearms” required deterrence, the court explained, and
a higher sentence would also protect the community. These are valid sentencing
considerations. See 18 U.S.C. § 3553(a)(2)(b)–(c); Hatch, 909 F.3d at 876.

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Lusk received a substantively reasonable sentence free from procedural error.
Accordingly, we A FFIRM in all respects.

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